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Unlocking Legislation On The Way, Don’t Get Too Excited

Friday, March 15, 2013 8:28

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Bipartisan bills in both chambers U.S. Congress are being introduced to reaffirm consumers’ rights to unlock their cellular devices after contractual obligations have been fulfilled, but stop short of any serious, permanent change.
The Senate version of the legislation is S. 517, the Unlocking Consumer Choice and Wireless Competition Act, which was introduced March 11 by Sens. Patrick Leahy (D-VT) and Al Franken (D-MN), along with Sens. Chuck Grassley (R-IA), Orrin Hatch (R-UT), Michael Lee (R-UT) and Amy Klobuchar (D-MN), all members of the Senate Judiciary Committee.
The provenance of the bill is important, as the involvement of so many Judiciary Committee members is sure to mean the bill will actually see a vote on the Senate floor. The bipartisan (yes, it’s still a real word) backing will help grease the wheels as well.
The bill is also very short, as bills go, which is both good, in that there won’t be much to argue about, and bad, because there really isn’t much the bill will actually do.
Breaking down the 289 words of the proposed law, Section 1 is the title of the bill. Section 2(a) calls for the repeal of the specific interpretation of the Digital Millennium Copyright Act (DMCA) made by the Librarian of Congress on October 28, 2012 that let the exemption that enabled consumers to unlock their phones without legal retribution expire on January 26, 2013.
Section 2(b) of the bill, though, sets a one-year limit on the repeal of the cell-phone unlocking exemption, which means that one year after this bill were to become a law, the Librarian of Congress would be free once again to review the DMCA and, if he chooses, could let the unlocking exemption expire once more, thus bringing the situation all the way back to where we are today.
Section 2(c) emphasizes that nothing in the law usurps the overall authority of the Librarian of Congress.
That’s the whole thing, only 140 words less than the actual bill.
The issue at hand is really the Digital Millennium Copyright Act, the 1998 law that Leahy helped create. Buried within the guts of this sweeping copyright protection law that criminalized any efforts to bypass copyright protections and device access control, is the authority given to the Librarian of Congress to periodically review new and existing technologies to make sure the DMCA is properly applied.
It was the Librarian’s 2012 DMCA review that would let the exemption previously granted to unlocking cell phones expire. This, in turn, would cause the creation of a White House petition calling for unlocked cell phones being legal again. The petition had a strong public response, getting 14,000 more signatures than the required 100,000 needed to get an official response.
(See also The White House Agrees: Unlocking Your Cellphone Should Be Legal.)
Last week, the White House, instead of giving one of its carefully worded neutral responses to these petitions, came out to blast the interpretation of the DMCA rule. U.S. carrier AT&T would then respond that it never had any problems with customers unlocking cell phones, as long as contracts weren’t broken.
(Check out AT&T: You Can Unlock Your Cellphone, Really.)
The White House’s explicit call for unlocking legislation means this bill has a good chance to be a law. Plus, in the House of Representatives, House Judiciary Committee Chairman Bob Goodlatte (R-VA) and Ranking Member John Conyers (D-MI) are also backing similar legislation, another good sign for backers of this bill.
Is this really enough? There is a chance, albeit small, that a one-year extension of cell phone unlocking will give the Librarian pause the next time the DMCA review rolls around. But it’s hard to buy that this bill is anything but political theater, a quick spoonful of pablum to make voters happy for a while and perhaps dispel the perception of Congress as something than hyper-polarized.
Good luck with that. The fact that no one seems opposed to cell phone unlocking, even the carriers that could stand to lose a little business if a customer takes their device elsewhere once a contract is done, is likely why Congress is all gung-ho on these bills. No lobbying? No problem.
There is also an inherent problem with all of this unlocking discussion: many users won’t care about unlocking. When their contract runs out, consumers are usually craving the latest new and shiny devices on the market. Even if they are looking to switch carriers, the thought of getting a new phone is compelling enough they won’t even bother with trying to take their old phone with them.
Unlocking will be great for those users who need it, but thanks to the power of marketing, holding on to phones for as long as you can seems to be a bygone practice.