The Implications and Backlash Surrounding the Digital Millennium Copyright Act (DMCA) Cell Phone Unlock Ban

In October 2012, the Librarian of Congress, James H. Billington, decided to remove the unlocking of cell phones exemption from the Digital Millennium Copyright Act (DMCA). The act went into effect on January 26, 2013, and it made clear that consumers would not be able to unlock their cell phones on a different network without carrier permission, regardless of whether or not the user contract had expired.

The practical implication of this act is that individuals who travel abroad on business will be forced to pay expensive roaming fees in order to activate their cell phones instead of simply unlocking their phones for use on a local carrier network. Essentially, if you are abroad and you want to make a phone call, this act makes it impossible to do so cheaply, as the roaming fees will rack up substantially.

One justification offered for the non-renewal on the exemption for unlocking cell phones in the DMCA is that phones are now sold unlocked, including some versions of the iPhone and the Google Android Nexus 4. As Marguerite Reardon has observed however, these phones are much more expensive than ordinary phones as they are not subsidized by the carriers. In response to the act, a whitehouse.gov petition was immediately circulated, which got over 100,000 signatures and attracted the attention of the White House itself. The petition asked the White House to overturn the act, noting that this would result in heavy roaming fees, a reduction in consumer choice, and a decrease in the market for used phones.

Through R. David Edelman, the White House Senior Advisor for Internet, Innovation, & Privacy, the White House recently expressed support for the signatories of the petition. Edelman agreed with the signatories that those who pay full price for a mobile device and are not tied to a service agreement should be able to use the mobile device on another network. In addition to protecting consumer choice and freedom, Edelman noted that there is an obligation to support a vibrant and competitive wireless market, which would be inhibited by such a law.

Edelman offered three potential solutions that the Obama administration supports in order to ameliorate the situation. First, Edelman tasked the legislature to enact laws that will allow consumers not bound by service agreements to switch carriers without fear of criminal penalties. Also, Edelman made it clear that the FCC also plays a role here, as it is responsible for promoting mobile innovation and telecommunications. Edelman noted that Chairman Genachowski has expressed his concern for the effects the act will have on competition and innovation. Finally, Edelman put the burden on mobile phone providers themselves to work together with their customers to establish service plans as consumer-friendly as possible.

It should be noted that the renewal did not omit the exception allowing consumers to jailbreak their phones. Consumers will still be able to jailbreak in order to add software and apps; they simply won't have the ability to unlock their phones for use in another network. Also, it is quite difficult to unlock a device without getting an unlock code from your carrier, so as long as you are careful, you should not be facing charges for unlocking your mobile device even under the new law.

Overall, the decision made by the Librarian of Congress does not place people in as much danger of criminal penalties as it does place them in danger of excessive fees, but the backlash from the cyber community to the White House itself has still been significant.