Unlocking Your Phone Without Permission Becomes Illegal Tomorrow: Here’s Why You Should Care

Kevin Purdy
After this upcoming weekend, you have to ask your phone company if you want to use the phone you (kind of) bought from them on any other carrier's network. You used to be able to ask for, or purchase, or hack your way to an "unlocked" phone, but that will be illegal after Saturday, Jan. 26, 2013.
The Librarian of Congress believes cellphone companies are doing a good enough job of fostering competition in their market, so the era of third-party unlocking is coming to a close.

Back in October 2012, the Librarian of Congress was asked by the Register of Copyrights to examine the exemptions made for certain classes of work under the Digital Millennium Copyright Act, or DMCA. I know what you may be thinking. "This Librarian, and this Register—do they live in giant vine-strewn towers? Do have any special powers if they leave Washington?" That is a good question, but first we must address other things.

The DMCA is an oft-referenced 1998 bill that, while tightening and specifying certain online and digital copyright laws, also allows for certain exceptions. It is the bill that allows YouTube and other sites to avoid never-ending lawsuits over copyright infringement, so long as they take down infringing materials once notified. The DMCA also makes it illegal to circumvent encryption and protection measures on copyright-protected materials—with exceptions.

In October 2012, that Librarian of Congress, tasked with regularly reviewing and determining whether the exceptions to the DMCA are still valid, changed course from previous decisions in 2006 and 2010 and determined that, in short, there exists enough unlocked phones, carrier unlocking options, and other options for consumers, such that unsanctioned unlocking of cellphones no longer needed to be a protected right.

The Librarian's decision is not a casual or short read. In its writing, the Librarian weighs the arguments of consumers' groups, digital rights advocates, and generally smaller and pre-paid carriers that would benefit from unlocking against a trade group that represents most major cellular carriers.

On the pro-unlocking side:

Proponents noted that "huge numbers" of people have already unlocked their phones under the 2006 and 2010 exemptions and claimed that ending the exemption will lead to higher device prices for consumers, increased electronic waste, higher costs associated with switching service providers, and widespread mobile customer "lock-in." Although proponents acknowledged that unlocked mobile devices are widely available for purchase, they contended that an exemption is still warranted because some devices sold by carriers are permanently locked and because unlocking policies contain restrictions and may not apply to all of a carrier's devices.

On the cellular side:

CTIA explained that the practice of locking cell phones is an essential part of the wireless industry's predominant business model, which involves subsidizing the cost of wireless handsets in exchange for a commitment from the customer that the phone will be used on that carrier's service so that the subsidy can eventually be recouped by the carrier. CTIA alleged that the industry has been plagued by "large scale phone trafficking operations" that buy large quantities of pre-paid phones, unlock them, and resell them in foreign markets where carriers do not subsidize handsets.

So the Librarian decided in October 2012 to no longer provide a safe space for third-party phone unlocking tools for phones purchased as new. A 90-day window was provided, so those who bought a new phone could still unlock it however they would like, legally. That window is closed on Jan. 26.

You may be able to get your carrier to unlock your phone, either after a 90-day period or when your contract is up. You might discover the pathways to unlocked phones, already well tread by those who broke their glass-backed iPhone 4 or 4S. Or you might just decide that it's not worth the hassle and just ask your smartphone carrier how much it costs to replace or upgrade your phone on their schedule, or to travel abroad at their pricing.

I think that expecting the carriers to maintain a consistent unlocking policy for transactions they've already processed is like asking the scorpion not to sting. I think that the unlocking exception in the DMCA can be revised to prevent "large scale phone trafficking operations" from exploiting loopholes, without cracking down on the guy who broke his $200 phone after 3 months and can't afford a $600 replacement. I think it stinks that the end of this 90-day window garnered only 12 articles that Google News could see today (now there are 13). Maybe there were just too many aspects of Apple's quarterly earnings and stock price to fit in fundamental device rights this week.