Public Knowledge Withdraws Support of Unlocking Phones Act

The Unlocking Consumer Choice and Wireless Competition Act now contains language that fails to divorce the issue from copyright infringement. 

Public Knowledge, a Washington D.C.-based public advocacy group, has withdrawn its support of H.R. 1123, also known as the Unlocking Consumer Choice and Wireless Competition Act.

In January 2013, it became illegal in the United States to unlock a mobile device, even after the service contract the device was tied to had been honored and expired. Consumers were largely outraged by the decision, and a We the People petition on quickly reached the 100,000 signatures necessary for the White House to address the issue.

Public Knowledge was among the groups pressuring Congress to act, and on Feb. 18 it created a Web forum that encouraged politicians to move forward and made it simple for people to reach out to their senators or representatives to help get the Act passed.

"Consumers should be able to unlock the phones we own, and unrelated copyright laws shouldn't stand in the way of that," said the forum. "H.R. 1123 is a narrow, common-sense fix that restores our right to use our phones with competing carriers."

However, on Feb. 19, the House Judiciary Committee released an amended version of H.R. 1123 for the full House to vote on the following week, and changes that have been made to it are unacceptable, says Public Knowledge.

"While the bill still allows a number of consumers to unlock their own devices, the amended version fails to address the flawed law at the root of the unlocking problem: the anti-circumvention provisions of the Digital Millennium Copyright Act," Sherwin Siy, vice president of Legal Affairs at Public Knowledge, said in a Feb. 21 statement.

The new language specifically excludes unlocking multiple devices—a vague reference that could refer to a handful of devices owned by a family or several dozen owned by a small store owner.

"Even if Congress believes that bulk unlocking is a problem, it's clear that it's not a copyright problem, just as individual unlocking is not a copyright problem," said Siy. "A bill designed to scale back overreaching copyright laws should not also endorse an overreach of copyright law."

The Digital Millennium Copyright Act

The issue of treating the unlocking of a phone as illegal is tied to the 1998 Digital Millennium Copyright Act (DMCA), which states that "no one person shall circumvent a technological measure that effectively controls access to a work protected under this title."

It goes on to say that every three years this position may be reviewed. In 2012, unlike during past review periods, the librarian took the unpopular stance of interpreting the ruling to make unlocking a smartphone illegal.

"The White House agrees with the 114,000+ of you who believe that consumers should be able to unlock their cell phones without risking criminal or other penalties," R. David Edelman, senior advisor to the White House on Internet, Innovation and Policy, said in a response to the Jan. 24, 2013, petition calling for a reversal of the librarian's decision.

Public Knowledge's Siy told eWEEK, following his most recent statement, that the "bulk unlocking" language is an effort to not undermine the subsidized phone model that most Tier 1 carriers favor.

"My point is they certainly don't need the DMCA to do that," said Siy. "The offense in that case would be breach of contract, and maybe some other issues, but certainly nothing to do with copyright."

He continued, "Any sort of unlocking is already legal; the fact that we keep seeing this sort of decision from the Library of Congress and this sort of language in the bill suggests that it might not be. And that's a mistake."

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