phone unlocking – Techdirt (original) (raw)

No Longer Consumer Friendly: T-Mobile Fights FCC Phone Unlocking Effort

from the from-hero-to-zero dept

Back in July, the Biden FCC voted to make unlocking your phone easier. As a result, the agency is now crafting new rules that would require that wireless carriers unlock customers’ mobile phones within 60
days of activation, even if you’re still under contract.

Wireless giant T-Mobile, which used to have a consumer-friendly reputation until its merger with Sprint, has been fighting the plan. First, by claiming that recent rulings by our corrupt Supreme Court effectively make FCC consumer protection efforts illegal. Then by claiming to regulators (falsely) that burdensome device restrictions help competition and reduce consumer prices.

Consumer groups are correctly punching back, noting in their own filings that such restrictions exist specifically to mute competition and make switching your handset between carriers artificially more difficult:

“Wireless users are subject to unnecessary restrictions in the form of locked devices, which tie them to their service providers even when better options may be available. Handset locking practices limit consumer freedom and lessen competition by creating an artificial technological barrier to switching providers.”

T-Mobile has actually been making such restrictions worse. The company recently increased its locking period for one of its brands, Metro by T-Mobile, from 180 days to 365 days.

This is all par for the course for a company that promised all manner of amazing innovations if it was allowed to merge with Sprint, only to turn around and immediately stop competing on price and fire a bunch of employees. The company’s reputation for being different from AT&T and Verizon evaporated, and most of the company’s “uncarrier” promotions have become nap-inducing.

Ironically Verizon, which used to be among the worst when it came to device restrictions (recall it even tried to lock customers to its own GPS apps by blocking competitors), isn’t fighting the proposal because it already unlocks its devices after 60 days as per conditions affixed to its spectrum licenses.

It took decades of dragging Verizon kicking and screaming to get to that point. Still, current unlocking requirements are a mish mash of requirements (many voluntary) usually affixed to either merger conditions or the use of certain spectrum. That’s resulted in a broad variety of different restrictions among carriers, many of which continue to harm competition.

The FCC’s new rules should accelerate and streamline consistent rules among what’s left of the sector’s competitors. You’d just hope that the FCC doesn’t make too many concessions to industry lobbyists during the rule-crafting process.

Filed Under: 5g, cellular, competition, contract, fcc, mobile, phone, phone unlocking, unlocked, wireless
Companies: t-mobile, verizon

Indiana Appeals Court Says Forcing Someone To Unlock Their Phone Violates The 5th Amendment

from the we'll-take-a-win,-no-matter-how-small dept

Passwords and PINs still beat fingerprints when it comes to the Fifth Amendment. But just barely. Nothing about the issue is settled, but far more cases have been handed down declaring fingerprints to be non-testimonial. Fingerprints are obtained during the booking process — a physical, traceable representation of the suspect. If they can be obtained during booking, they can certainly be obtained again to unlock a device. A physical aspect of a human being can’t be considered “testimonial” as far as courts have interpreted the Fifth Amendment.

Passwords are a different story, but not by much. In a handful of cases, courts have said the compelled production of passwords and PINs has no Fifth Amendment implications. Defendants, conversely, have argued compelled password production forces them to testify against themselves by facilitating the production of evidence to be used against them.

This argument hasn’t had much success. Judges have frequently found password production to be just as non-testimonial as a person’s fingerprint. The argument here is that all law enforcement wants is a password, not the production of evidence. Under the “foregone conclusion” theory, all the government has to prove is that the person being asked to unlock a device can unlock the device.

This decouples password production from its consequences: the production of evidence by defendants that the government will use against them in court. When this theory is applied, the Fifth Amendment is sidelined and replaced with the ultra-low bar of foregone conclusion.

But passwords aren’t fingerprints and can be testimonial. Unlocking a device law enforcement is going to search for evidence states clearly that a person owns or controls the device and its contents. That makes it very easy for the government to link a device’s illicit contents to the person who was ordered to unlock it.

A case from Indiana’s Court of Appeals — via FourthAmendment.com — addresses these arguments with a bit more sympathy for compelled testimony arguments. The government argued there’s nothing testimonial about a password. The court, in a lengthy decision [PDF], disagrees.

[W]e consider [Kaitlin] Seo’s act of unlocking, and therefore decrypting the contents of her phone, to be testimonial not simply because the passcode is akin to the combination to a wall safe as discussed in Doe. We also consider it testimonial because her act of unlocking, and thereby decrypting, her phone effectively recreates the files sought by the State. As discussed above, when the contents of a phone, or any other storage device, are encrypted, the cyphertext is unintelligible, indistinguishable from random noise. In a very real sense, the files do not exist on the phone in any meaningful way until the passcode is entered and the files sought are decrypted. Thus, compelling Seo to unlock her phone goes far beyond the mere production of paper documents at issue in Fisher, Doe, or Hubbell. Because compelling Seo to unlock her phone compels her to literally recreate the information the State is seeking, we consider this recreation of digital information to be more testimonial in nature than the mere production of paper documents.

The court also says there’s nothing to the government’s argument that unlocking a phone for police is somehow different — and less of a Fifth Amendment issue — than turning over a password to police.

[B]ecause we believe that electronic data and the devices that contain it are fundamentally different than paper documents and paper storage, we reject the State’s attempt to distinguish between compelling Seo to convey her passcode to the State and compelling Seo to simply unlock her phone by entering the passcode itself. It is a distinction without a difference because the end result is the same: the State is compelling Seo to divulge the contents of her mind to obtain incriminating evidence.

This decision shores up Fifth Amendment arguments against compelled decryption and password production. The state appeals court then goes further, instructing state judges and law enforcement agencies to seek less invasive — and less constitutionally-problematic — methods of obtaining evidence.

Going forward, we ask reviewing courts of last resort to consider the following structure for resolving decryption requests from law enforcement authorities:

1. Requiring a defendant to decrypt digital data should be legally recognized for what it is—coerced recreation of incriminating evidence— and compulsory process for that purpose should be strictly limited for precisely that reason.

2. In some instances, law enforcement officials will have legitimate need of digital information that is protected by encryption.

3. If the law enforcement request is a bona fide emergency, with verified concern about the possibility of further and immediate serious criminal acts, a warrant that describes the other imminent crime(s) suspected and the relevant information sought through a warrant, both with reasonable particularity, will likely satisfy Fourth and Fifth Amendment requirements.

4. In non-emergency situations, law enforcement should be required to first seek the digital data it wants from third parties, such as internet “cloud” sources, cellphone companies, or internet providers (ISPs), where a defendant has practically, if not explicitly, consented to production upon legal process from a court of competent jurisdiction.

5. Exceptions to the Fourth Amendment and its state analogues, such as the plain view doctrine and the good faith exception, should be inapplicable to, or strictly limited in, the search and seizure of digital data stored on devices owned or controlled by that defendant, or from “Cloud” subscriptions that defendant owns or uses.

It’s a thoughtful decision that runs contrary to many rulings covering the same subject. But it is limited to the state of Indiana, so it’s not going to undo any federal precedent. But it does give those representing clients facing demands for password production another citation in their favor. More importantly, it sets a new baseline for lawful demands for data production, wresting control away from law enforcement agencies unlikely to impose these constraints of their own.

Filed Under: 4th amendment, 5th amendment, indiana, kaitlin seo, phone unlocking

Despite A Year To Prepare, Wireless Carriers Struggle To Adhere To Weak And Voluntary Cell Phone Unlocking Guidelines

from the you-had-one-job dept

Wed, Feb 18th 2015 12:41pm - Karl Bode

One of the very first things new FCC boss Tom Wheeler did when he entered office was to get wireless carriers to agree to a list of voluntary cell phone unlocking guidelines. The six “demands” are largely common sense and uncontroversial, and include requiring that carriers offer unlocked devices to active overseas service members, make their postpaid and prepaid unlocking policies as clear as possible, respond to unlocking requests within two business days, and automatically notify customers when their contract period ends and their phone can be unlocked.

I’d heard that carrier lobbyists balked at this last request fearing it would “advertise” unlocking, but ultimately acquiesced out of fear of tougher, non-voluntary rules coming down the pike. Note this is entirely separate from the fight over keeping cell phone unlocking legal and the need for DMCA exemption process reform. The rules also don’t require that carriers simply sell unlocked phones outright, since that would probably make a little too much sense. After agreeing to the rules, carriers had more than a year to adhere to all six requirements, and the final deadline arrived last Wednesday.

Sina Khanifar, who you might recall started the White House petition on cell phone unlocking, has done an interesting bit of analysis on how well carriers have adhered to the six rules. He offers up this handy chart showing that T-Mobile and Sprint in particular appear to be struggling:

Interestingly it’s Verizon and AT&T, arguably the worst of the major carriers when it comes to attempts to stifle openness over the years, that come out ahead in adhering to all six guidelines (though your mileage may vary, and since the rules don’t require much, this may not mean much). For Verizon, that’s in part thanks to the Carterfone conditions placed on its 700 MHz spectrum, though that hasn’t stopped the company from fighting openness in general tooth and nail in other ways. As I’ve noted previously the conditions have plenty of loopholes — and anti-competitive behavior is allowed just as long as companies ambiguously insist that what they’re doing (like blocking Google Wallet, or locking bootloaders) is for the “safety and security of the network.”

Similarly interesting is the fact that T-Mobile, despite a recent reputation for being a fierce consumer advocate, sits right alongside Sprint when it comes to failing to adhere to the fairly simple requirements after a year’s head start. Khanifar notes T-Mobile saddles prepaid and postpaid users with a number of strange restrictions, including the fact that users can’t unlock more than 2 devices per line of service in a 12 month period. Between this, the company’s opposition to Title II and its failure to understand the problems with zero rated apps, T-Mobile’s showing it still needs to actually earn that ultra-consumer-friendly reputation.

Khanifar proceeds to note that despite carrier struggles this is at least a step in the right direction, even if we still need DCMA reform to ensure unlocking remains perfectly legal. That said, he quite justly highlights how cell locking no longer makes any coherent sense, for anybody:

“It’s worth taking a step back and examining the absurdity of these locks. If you’ve paid for your AT&T phone, committed to a 2-year contract, and agreed to an “early termination fee,” what purpose does a lock really serve? If you’ve paid cash to purchase a prepaid device, why should it come locked to just one carrier? There’s plenty of evidence that locks serve little real commercial purpose. Verizon’s business hasn’t suffered since they stopped locking their phones. Countries like China and Israel have made locking devices outright illegal with no harm to their wireless industries and plenty of gain for consumers. But unfortunately it’s unlikely that Congress or the FCC will take action to implement a similar policy here in the US.”

Of course unlocked, open devices widens the competitive door, and with the kind of lobbying power AT&T, Verizon and the entertainment industry wield over Congress, getting real DMCA reform or mandated unlock-at-sale rules in play will likely be nothing short of a miracle.

Filed Under: fcc, mobile operators, phone unlocking
Companies: at&t, sprint, t-mobile, verizon

Administration Proudly Announces That If Your 'We The People' Petition Aligns With Its Priorities, Something Might Actually Happen

from the go-team-Government! dept

Let’s get this right out in the open. I don’t have any particular animosity towards this administration. I just don’t find it to be an improvement over the last one (which I found to be pretty much terrible from all angles). This wouldn’t be notable except for the fact that this administration definitely considers itself to be a vast improvement over the last one and has made several proclamations advancing that theory. (“Most transparent administration,” anyone?)

We fully expect politicians to be self-serving and those sitting atop the heap to be the most self-serving of all. The White House blog has taken the passage of the cell phone-unlocking bill as an opportunity to toot lean on its own horn.

On Friday, August 1, President Obama signed a bill into law that again made it legal for consumers to unlock their cell phones in order to take them to a carrier that best suits their needs. It marked the very first time a We the People petition led to a legislative fix.

This last fact — the first time a petition resulted in a legislative fix — should be an admission of failure. Instead, it’s used to depict the administration as a champion of the people.

The petition, which arose in the aftermath of the Library of Congress’ horrible decision to not renew this DMCA exemption, attained the number of signatures needed to obtain a White House response. While many others with the minimum number of signatures have been steadily ignored, the White House responded to this one. Beyond the response posted at the We the People site, more was apparently going on behind the scenes.

Folks here at the White House leapt into action. The White House policy team convened more than a half-dozen agencies and offices’ senior officials to ask a simple question: How can we move this issue forward? After careful deliberation, it was clear to us: The Administration couldn’t agree more with petitioners, and we came out in strong support of again making it legal for consumers to unlock their devices.

According to the narrative at the White House blog, the administration did all the heavy lifting and motivated Congress to pass a bill — though it still took a year and a half for a very narrowly tailored solution that only temporarily addresses the immediate problem, but totally ignores the underlying problem (the anti-circumvention provisions of the DMCA). But whatever the details behind the scenes, what’s out front is more of the same.

The message here is that if your petition happens to align with the administration’s priorities/viewpoints, you’ll receive a swift response and maybe even some legislative activity. If your petition happens to run contrary to the administration, the best you can expect is some long-delayed talking points in response… if you receive anything at all.

The We the People site is a good idea — an easy way for citizens to exercise their First Amendment right to petition their government. But that idea has been largely destroyed by the administration’s refusal to treat it as anything more than a place to cherry pick requests for PR purposes. If this site’s ever going to serve the higher purpose it’s supposed to, it needs to be given more than rote recitals of position papers. The administration needs to start responding seriously to petitions that challenge its positions or run contrary to its aims. And it needs to stop ignoring anything that’s passed the signature threshold. The way it handles this has little if anything to do with respecting the public’s First Amendment rights.

Filed Under: anti-circumvention, copyright, petitions, phone unlocking, unlocking, we the people, white house

from the the-system-is-broken dept

If you follow the history of copyright law, it’s truly about taking a ridiculous duct-tape approach to dealing with changes in technology. Basically, each time a new technology comes along that shows how the old laws are obsolete, lobbyists run to Congress and some sort of change is duct-taped on, often haphazardly, with little concern for either the unintended consequences or exploring how broken the system is in the first place. That actually makes things worse, because you have all these random “add-ons” that make copyright law make even less sense. When radio came along, we got some duct tape. When cable TV came along, we got some duct tape. When the internet came along, we got some duct tape. And not all of it made sense. There are still big fights going on today as everyone tries to sort out how the radio duct tape applies to the internet. And, of course, the Aereo fight was partly about whether or not the cable duct tape applies to the internet (leading to the Supreme Court turning duct tape into a duck).

We’ve discussed at length the ridiculous process by which cell phone unlocking was briefly declared legal under copyright law… and then magically became illegal due to a decision by the Librarian of Congress to rescind an exemption to the DMCA. After over 100,000 people signed a petition asking for it to be fixed, the White House told Congress to fix it — but in true duct-tape fashion, decided that it should just add on some more duct tape by saying changes should be made to telecom regulations, rather than targeting the root of the problem: Section 1201 of the DMCA, better known as the anti-circumvention clause.

As we noted recently, after a year-and-a-half of a mix of fighting over this and a whole lot of nothing, the Senate came up with a compromise that isn’t horrible, but doesn’t do very much other than make it legal to unlock your phones again. The full Senate has now approved this. Of course, earlier this year, the House passed a dangerously bad bill to pretend that it was dealing with the problem as well, but it actually had some bad problems. The two houses will have to bring the bills into alignment now, and hopefully the Senate bill wins out.

However, as Tim Lee over at Vox points out, this is a huge missed opportunity because it’s Congress taking that same duct tape approach yet again. Rather than actually fixing the underlying problem (a broken Section 1201), Congress has decided to pass a bill that duct tapes on “except for unlocking mobile phones… for now.” This isn’t surprising. Actually fixing Section 1201 would be a massive process that would lead to quite an insane fight from Hollywood (they love the anti-circumvention provision, because it allows them to DRM everything and create controls for themselves beyond what everything else in copyright law allows — such as taking away fair use).

The other big stumbling block is that, thanks to bogus international trade agreements, doing something so simple as to actually fix this broken part of the DMCA that possibly made cell phone unlocking illegal… would likely violate more than half a dozen trade agreements. While Congress has the power to ignore those trade agreements if it wants, lobbyists love to go apeshit about anything that might “violate international agreements,” as if suddenly Europe won’t do business with us any more because we dare to let people unlock their mobile phones.

Either way, this one issue does a lot to show why copyright law continues to be such a mess. It’s just a hack process, which new technology routes around… and Congress’ response is just to duct tape on the next mess to “fix” the mistake, rather than look at the underlying reasons why the law is outdated and problematic. Hopefully you’ll be able to unlock your mobile phones soon without worrying about breaking the law — but that won’t be true for other things, like modifying your video game console or other types of electronic devices. A sane world would get to the root of the problem and fix it, but this is Congress we’re talking about, and no one thinks that’s a sane world.

Filed Under: 1201, anticircumvention, copyright, dmca, duct tape, exceptions, phone unlocking

from the congress-moves-in-mysteriously-slow-ways dept

A year and a half ago, unlocking your mobile phone became illegal thanks to a combination of ridiculous factors, mainly predicated on the DMCA and the way some people interpret its anti-circumvention provisions. For years the Librarian of Congress had carved out a special exemption for phone unlocking — but what the omnipotent copyright gods of the Librarian of Congress giveth, they can also taketh away, and they did. The situation was so ridiculous that over 100,000 people quickly signed a White House petition protesting this, and the White House (with surprising speed) agreed that phone unlocking should be legal. Though, somewhat bizarrely, the White House seemed to think it was an issue for the FCC to fix, rather than recognizing the underlying fault of copyright law.

Various proposals were raised, but thanks to ridiculous international trade agreements, some of the best proposals ended up on the cutting room floor. I spoke to two separate Congressional staffers who had written up bills to legalize phone unlocking, only to have their international trade experts come in and reject them as likely violating a whole bunch of secretly negotiated trade agreements (and you wonder why we’re concerned about things like TPP and TTIP limiting Congress…).

It took about a year before the House finally came up with a bill that had some significant limitations and problems. Despite some last minute protests, that bill passed. Since then, there’s been a fair bit of negotiating in the Senate, and it appears that a compromise deal has been struck that should, hopefully, finally legalize phone unlocking a year and a half later. The Senate bill is not perfect (almost no legislation ever is), but it’s a big step forward in the right direction.

It still is ridiculous that we’re in this situation in the first place, and it should be a sign to look more closely at the problems of the DMCA’s anti-circumvention laws. It’s equally ridiculous that it’s taken a year and a half to “fix” this specific problem, but at least it finally appears that a solution is at hand for the specific issue of unlocking your mobile phone.

Filed Under: anti-circumvention, dmca, phone unlocking, senate

Congress Rushes To Legalize Phone Unlocking; But Existing Bills Need A Lot More Work

from the the-view-from-capitol-hill dept

Well, what a difference 114,000 signatures, a Presidential endorsement, and an FCC investigation make! As a lead activist on this issue, I can say that on Capitol Hill there has been a significant sea change on the issue of cellphone unlocking. Numerous Republicans and Democrats have come out publicly in favor of unlocking and against the criminal penalties at hand. On Monday, only a few hours after the Presidential endorsement of unlocking, we heard from Rep. Chaffetz that he was working on legislation — through him tweeting:

Working on leg to unlock your mobile phones.It is a freedom issue.You own the phone, you should be able to unlock it. .@derekkhanna

— Jason Chaffetz (@jasoninthehouse) March 5, 2013

On Tuesday, Senator Wyden introduced his legislation, the Wireless Device Independence Act. This is a good first step but unfortunately, it does not actually address the problem yet. In its current text, it seems to allow for individuals to unlock their own phones, but it keeps developing, selling, trafficking and discussing the tools and technology of cellphone unlocking still illegal. Without these tools being legalized, unlocking is still effectively illegal.

Also on Tuesday we heard from numerous Members of Congress that they support legalizing unlocking, including Rep. Darrell Issa and Rep. Jarred Polis. Additionally, there was a statement by Senator Patrick Leahy that was seen by many as giving a green light to other Democrats to endorse the legislation. Sen. Leahy, Chairman of the Judiciary committee, released this statement:

“I intend to work in a bipartisan, bicameral fashion to restore users’ ability to unlock their phones and provide them with the choice and freedom that we have all come to expect in the digital era,”

Then on Thursday, Senator Amy Klobochar, Senator Richard Blumenthal and Senator Mike Lee introduced the Wireless Consumer Choice Act (and Rep. Anna Eshoo is expected to introduce companion legislation in House).

From Senator Lee:

“Consumers shouldn’t have to fear criminal charges if they want to unlock their cell phones and switch carriers… Enhanced competition among wireless services is the surest way to increase consumer welfare.”

This statement is confusing as it is supposed to be about this bill – but that’s not actually what the Wireless Consumer Choice Act DOES.

The actual text of the Wireless Consumer Choice Act says that: “[the FCC] shall direct providers of commercial mobile services and commercial mobile data services to permit the subscribers of such services, or the agent of such subscribers, to unlock any type of wireless device used to access such services.” This is quite a confusing bill text. Here are a few problems. What does permit mean in this context? Is it:

  1. Carriers can’t actively stop consumers with technological means (unlikely).
  2. Carriers can’t stop consumers (but which doesn’t address manufacturers or others like the DOJ going after you for criminal charges).
  3. Facilitate the unlocking by providing the codes upon request? Would they have to give the codes even if you are in contract to not unlock? Doesn’t permit mean you are required to period?

The one thing we know for a fact is that “permit” doesn’t have anything to do with adjusting their contractual terms to “allow” for consumers to unlock under their contract (all legislation appears to have a clause asked for by CTIA that it won’t touch existing contract law). Essentially, this legislation says that the wireless companies can’t enforce Section 1201 of the DMCA.

But that doesn’t protect against the manufacturers like Apple, HTC, etc. coming after users (as was the case for Sina Khanifar, who joined me on the activism campaign for unlocking). And it doesn’t protect against the criminal provisions, which would require another law. So since it has nothing to do with criminal law, it’s confusing as to why Sen. Lee’s statement would be about criminal law; however, it appears that he may introduce new, supplemental legislation that specifically deals with the criminal provisions as well.

Ok, so we are now at a total of two introduced bills.

Lastly, and perhaps most promising, as mentioned at the top, it appears that Rep. Jason Chaffetz is working on legislation and expected to target the unlocking criminal penalties, like Senator Wyden’s bill, but Rep. Chaffetz’ bill appears to be seriously considering doing so in an inclusive manner to also legalize the tools. In legalizing developing the tools, trafficking, selling and using the tools, such a bill would be the first real bill to actually make unlocking lawful.

Just to be clear, legislation goes through a process, and these bills will be revised and go through a committee. These committee hearings may be one of the first times that Congress has discussed some of the issues with the DMCA in the recent past. It’s really pretty incredible that they haven’t even held oversight hearings.

Unfortunately, none of the bills under consideration or under discussion appear to include anything beyond unlocking. They do not include anything to allow for accessibility technology for persons who are blind or deaf, allow for jailbreaking, or allow for computer science research. These issues will require additional activism and engagement to get them on the table.

If a narrow bill passes on unlocking, instead of taking on more substantive reforms, it is my intention to next lead a targeted campaign on accessibility technologies. There is no legitimate governmental reason for keeping these accessibility technologies illegal — and we cannot continue to deny persons who are deaf and blind technology that can help them because a law was written before modern technology, outlawing them by default.

Today is just over two months since my last day on Capitol Hill — and in those two months I have seen the anti-SOPA coalition accomplish their first forays in actively passing positive legislation. These may seem like small victories, but as I discuss in my piece for Boing Boing, these are small, strategic, affirmative victories that will culminate in even greater action. I encourage people to stay involved and continue to reach out to their Members of Congress on this issue. It’s up to us to ensure that they actually fix the problem, as opposed to just checking the box.

Update: This afternoon we find out that Rep. Goodlatte, House Judiciary Committee Chairman, will be introducing a bipartisan bill with Ranking Member Rep. Conyers on this issue — but it’s unclear what they have in mind. Let’s hope that Goodlatte’s bill actually solves the problem by including legalizing the tools permanently — rather than a check the box approach. But Goodlatte was also an original sponsor of the Stop Online Piracy Act (SOPA) so we will have to see their approach. The worst check the box approach would be to simply reverse the decision of the Librarian of Congress and provide a temporary “exception” for three years and let the Librarian rule on this again in three years. That would keep the underlying technology illegal but also require the same triennial review process, that has failed here, to ask permission. That would be truly unacceptable.

Filed Under: amy klobuchar, anti-circumvention, copyright, dmca, jason chaffetz, laws, mike lee, patrick leahy, phone unlocking, richard blumenthal, ron wyden

Librarian Of Congress Shoots Back At White House Over Phone Unlocking: We're Just Doing Our Job

from the well,-that's-one-way-to-look-at-it dept

Following the White House officially coming out and saying that mobile phone unlocking should be legal, the Librarian of Congress has issued what feels like a passive aggressive response, basically saying that their job is not to consider the public policy, but just to follow the specific rules under the DMCA.

Both the Librarian of Congress and the Register of Copyrights value our colleagues in the administration and the thoughtful discussions we have had with them on this issue. We also agree with the administration that the question of locked cell phones has implications for telecommunications policy and that it would benefit from review and resolution in that context.

The question of locked cell phones was raised by participants in the Section 1201 rulemaking conducted between September 2011 and October 2012 by the Register of Copyrights, who in turn advises the Librarian of Congress. The rulemaking is a process spelled out by the Digital Millennium Copyright Act in which members of the public can request exemptions from the law to enable circumvention of technological protection measures. In the case of cell phones, the request was to allow circumvention of technological protection measures controlling access to copyrighted software on cell phones.

The rulemaking is a technical, legal proceeding and involves a lengthy public process. It requires the Librarian of Congress and the Register of Copyrights to consider exemptions to the prohibitions on circumvention, based on a factual record developed by the proponents and other interested parties. The officials must consider whether the evidence establishes a need for the exemption based on several statutory factors. It does not permit the U.S. Copyright Office to create permanent exemptions to the law.

As designed by Congress, the rulemaking serves a very important function, but it was not intended to be a substitute for deliberations of broader public policy.

In other words, “hey, don’t blame us — we just did what we were supposed to do, and that’s got nothing to do with policy.” I find that a bit disingenuous. Clearly, a part of the DMCA triennial exemptions is to recognize when the law is creating a situation that makes little common sense, and to try to act as a valve to prevent the blocking of certain uses and technologies. Here, they failed to do so, and the White House has called them out on it.

Unfortunately, we’re still left scratching our heads as to why the White House claims this should be fixed via telecom law, when the issue arose entirely out of copyright law. It looks like the White House is trying to do some tap dancing to avoid admitting that the DMCA anti-circumvention clause is seriously broken.

Filed Under: copyright, dmca, exemptions, librarian of congress, phone unlocking, policy making, white house

Just Two More Days To Unlock Your Phone, Then You'll Be Breaking The Law

from the ridiculous dept

We’ve always had our concerns about the ridiculous DMCA “exemptions” process concerning circumvention of digital locks. If you don’t know, the DMCA has a strict anti-circumvention rule that says breaking digital locks, such as DRM, is itself a violation of copyright law, even if the purpose of the lock-breaking does not infringe on anyone’s copyright. As a sort of “pressure valve” every three years, people can “apply” to the Librarian of Congress for exemptions to that rule. This, of course, is completely ridiculous and backwards. We need to apply, once every three years, to use legally purchased products the way we want to without it being considered illegal? That’s crazy. But it’s the way things are set up, and it can lead to some bizarre scenarios. As we explained last year when the latest round of exemptions was announced, the Librarian of Congress took away the exemption for unlocking your phone… but provided a 90 day window.

That window ends on Sunday. In other words, unlocking your phone on Saturday: legal. Unlocking your phone on Sunday: you probably just broke the law. As the EFF properly notes, this is not what copyright law is supposed to be about:

“Arguably, locking phone users into one carrier is not at all what the DMCA was meant to do. It’s up to the courts to decide.”

I don’t even think there’s anything “arguable” about it. Copyright law has no business being involved in deciding whether or not my phone can be unlocked. It’s silly that this is an issue. It’s silly that there needed to be an exemption in the first place. And it’s silly that this exemption is being taken away. It’s for things like this that people lose respect for copyright law.

Filed Under: anti-circumvention, copyright, digital locks, dmca, drm, exceptions, phone locks, phone unlocking