Cell Phone Unlocking to Get a Reprieve Under Proposed Senate Bill

NEWS ANALYSIS: Sen. Patrick Leahy (D-Vt.) has introduced a bill that orders the Librarian of Congress to rethink the ban on cell phone unlocking, but it doesn’t actually order a change and it’s not permanent.

There was some brief rejoicing around Washington, D.C., on March 11, when Sen. Patrick Leahy (D-Vt.) announced legislation that would order the Librarian of Congress to reconsider the decision that makes it a violation of the Digital Millennium Copyright Act to unlock a cell phone without the permission of the carrier. Previously, the Librarian had exempted cell-phone unlocking from the DMCA, but in January made a puzzling ruling that changed this.

The new law, known by its short title, “Unlocking Consumer Choice and Wireless Competition Act” (S.517) which seems very likely to pass due to its bipartisan sponsorship and the probable introduction of similar bipartisan legislation in the U.S. House of Representatives in the near future, would order the LOC to reconsider the decision to eliminate the exemption for cell phone unlocking and to make a new decision within one year. Sen. Leahy, principal author of the DMCA, said in a statement that such a limitation wasn’t the intent of the law at all.

“When I wrote the DMCA, the law was intended to allow choice and protect consumers,” Leahy said in a prepared statement. “This straightforward restoring bill furthers that objective. When consumers finish the terms of their contract, they should be able to keep their phones and make their own decision about which wireless provider to use. They should not be forced to stay with their original provider due to software that restricts a phone to only one network.”

“I am pleased that many wireless providers already sell unlocked phones, or will unlock phones for consumers once contracts expire, but that does not mean that consumers should face penalties under the DMCA for taking those same steps on their own,” Leahy added in his statement. “This bill will protect and promote competition in the wireless market by allowing consumers to bring their phones with them to the provider that best suits their needs.”

Leahy also noted that Congressional action was necessary due to public demand that cell phone users continue to be able to unlock their phones, regardless of whether the carrier agrees. “Over the past few weeks and months, consumers have spoken clearly; they want to retain the right to transfer their cell phones between wireless providers, if they so choose, when their contracts expire,” Leahy said in his statement. “I agree.”

Leahy also called for the cell phone unlocking exemption to be expanded to include tablet devices with cellular data capabilities. While many tablets, including the iPad, are already unlocked, many are not.

The problem with the legislation as written, shown here on the Website of Public Knowledge since it’s not available on the Senate’s site yet, can be found in two provisions.