Unlocking Smartphones Rendered Illegal by Librarian's Baffling Decision

NEWS ANALYSIS: In yet another unintended consequence of some very flawed legislation, it’s now illegal to unlock any phone you purchase after Jan. 26.

The Digital Millennium Copyright Act of 1998 has been the source of both controversy and consternation since it became law 15 years ago. Because of the DMCA, it became illegal to defeat the encryption on a DVD you purchased so you could watch a movie on your Linux computer.

It became illegal to make a binary copy of a movie so you could watch it on your iPad. Now, because the Librarian of Congress has decided it to be this way, it’s now illegal to unlock phones purchased on or after Jan. 26.

No doubt you’re asking yourself several questions. First, how is it that the DMCA has anything to do with phones? Second, why does the Librarian of Congress have anything to do with whether phone unlocking is illegal? We could go on from there.

Basically the way it works is this. Every three years the Librarian of Congress, which was made the responsible party for determining exemptions to the DMCA issues a report in situations in which the law doesn’t apply.

For the last six years, the Librarian has allowed phone unlocking. That exemption was removed last year, and it takes effect on Jan. 26. But as you might expect, this is anything but straightforward. You can read it for yourself right here, but be aware that the part you’re interested in starts halfway down the page, past the aviation stuff.

First, even if you can’t unlock your phone, you can still jailbreak it. The reasoning is that you should be allowed to enable your cell phone to use legally acquired software, even if the phone manufacturer or the carrier doesn’t like it. But just in case you’re tempted, you can jailbreak a phone, but not a tablet. I realize that this makes no sense.

But this doesn’t mean an end to unlocked phones. It’s still perfectly legal to buy a phone that’s already unlocked, which is one reason that the Librarian of Congress decided it’s OK to outlaw unlocking. It’s also legal to unlock your phone if the carrier says you can. So that means that if you call AT&T and ask for an unlock code, AT&T can give it to you and you can unlock your phone legally. It’s worth noting that AT&T announced last year that it would provide unlocking information for customers whose contracts have expired.

T-Mobile already has a policy of unlocking phones on request after you’ve had them for 90 days. With Sprint and Verizon Wireless, the question is still up in the air. But with those CDMA phones, the primary reason people want them unlocked is so they can use them overseas where CDMA service is rare. For the most part, those companies don’t lock the GSM functions of their phones.

Wayne Rash

Wayne Rash

Wayne Rash is a freelance writer and editor with a 35 year history covering technology. He’s a frequent speaker on business, technology issues and enterprise computing. He covers Washington and...