Inside the Fight to Legalize Cellphone Unlocking

Last month, you lost your legal right to unlock your cellphone without your wireless carrier's permission. Sina Khanifar and Derek Kannah, two up-and-coming technology policy advocates from vastly different backgrounds, have come together to demand that cellphone unlocking right be returned.

Why Is Unlocking Illegal?

Cellphone unlocking was legally allowed as an exemption under the Digital Millenium Copyright Act (DMCA) from 2007 through Jan. 26 of this year. Following the change, customers must get their carriers' permission to unlock their phones (some carriers offer some phones unlocked, as is the case with Verizon Wireless' iPhone 5, but that's an exception to the rule). Some experts say carriers are only likely to target wholesale retailers of unlocked phones under the new rule, but it could also be used against individual users.

The DMCA was created in part to prevent consumers from breaking copyright holders' restrictions on protected content. The legality of unlocking changed when the Librarian of Congress decided against re-including it in a list of DMCA exemptions which the Librarian authorizes every three years, as called for by the language of the law. Groups who want a technology or practice exempted from the DMCA have to lobby the Librarian every three years, an increasingly exhausting process as new technologies are created that the DMCA's authors could not foresee.

If that sounds like a bizzarre legal practice, there's a good reason: it is.

If that sounds like a bizzarre legal practice, there's a good reason: it is.

The Library of Congress oversees the U.S. Copyright Office, which gave the DMCA's authors logical cover in giving the Librarian control of the exemptions process. However, it's almost unheard of for the Librarian to have a say in lawmaking. Additionally, the process puts the Librarian at the center of criticism over the DMCA. That's because the Librarian's exemptions can imply the subjects of exemptions are within the scope of the DMCA, effectively broadening the law without changing its language.

Khanifar's and Khanna's Cause

Khanifar, a technology entrepreneur and self-described political independent, has long championed the right of consumers to unlock their phones. In 2005, he faced legal threats from Motorola for selling phone unlocking software. After receiving a cease-and-desist, he connected with Jennifer Granick, Director of Stanford Law School?s Center for Internet and Society, who helped him get Motorola to drop the case. Granick later successfully petitioned the Librarian for the DMCA unlocking exemption that expired in January.

Khanna, a young Republican with several years of experience on the hill and with two presidential campaigns under his belt, was fired from the House Republican Study Committee last November only days after the committee published a memo he wrote calling for a major overhaul of copyright law. Committee leadership quickly pulled the memo, which was shockingly out of bounds of public mainstream Republican sentiment on copyright, because it was "published without adequate review."

As the memo shook the intellectual-property policy community, Khanna realized he tapped into an underlying growing desire to change the way copyright works in the United States.

As the memo shook the intellectual-property policy community, Khanna realized he tapped into an underlying growing desire to change the way copyright works in the United States. Four months after being fired, he's beginning to re-imagine himself as a vociferous reformer who's isolated the DMCA as a target for his activism.

Khanifar and Khanna connected with one another after Khanna's argument against cellphone unlocking was published in The Atlantic in early November. Khanna later published a call-to-arms blog post on Boing Boing in which he called upon Congress to permanently remove the DMCA ban on unlocking and other technologies.

A Bipartisan Cause

The pair approach the issue from two different angles: To Khanifar, unlocking is a matter of greater consumer choice.

"[The unlocking ban] reduces consumer choice, and decreases the resale value of devices that consumers have paid for in full," reads a White House petition Khanifar wrote that quickly reached the 100,000 signature threshold required for an official response ? which the White House told Mashable is forthcoming. Khanifar, meanwhile, is busy working on a website as a follow-up to the White House petition which will help other activists contact Congress to demand broader DMCA reform.

Central to Khanna's thesis, on the other hand, is a property rights argument: If you own a cellphone or other device, shouldn't you have the right to do with it as you will?

"This issue is right in my wheelhouse, because I'm trying to take on antiquated laws that are stifling innovation, particularly dealing with copyright but also with patents," Khanna told Mashable. "This seemed like the most absurd application of copyright law ever, and one that actually has issues as far as violating personal property rights as well."

Taken together, Khanifar and Khanna's ideas have appeal to partisans on either side of the ideological divide.

Taken together, Khanifar and Khanna's ideas have appeal to partisans on either side of the ideological divide. Liberals should connect with Khanifar's consumer choice argument, while conservatives will find comfortable ground in Khanna's property rights motif.

"Republicans hate big government and unnecessarily regulation, and that's exactly what this is," said Khanifar. "And liberals are concerned with protecting consumers, and for that reason it's something they should care about as well."

"This is an issue that has regiments on the left and the right and on the cellphone unlocking issue we have as broad a coalition as you could ever have," said Khanna. "When you talk about issues that affect the consumer, that affect the economy, that affect innovation, those are issues that are left right and center."

Khanifar added that he believes it isn't politicians who pose the greatest roadblock, but rather the powerful and influential entertainment lobbies.

"I think politicians will understand the reasons people will care about this, but I think the bigger problems are the lobbies," added Khanifar. "I think they're the ones who would hate to have anything changed in the DMCA, so that's a tricky thing to fight against. Fighting against big lobbies isn't easy, but I think we have to show politicians that enough people care about this."

Should unlocking cellphones without carriers' approval be made legal once again? Share your thoughts in the comments.

Mashable composite. Images by Mashable and iStockphoto, alengo

Source: http://mashable.com/2013/03/03/cellphone-unlocking/

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