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White House: "It's Time To Legalize Cell Phone Unlocking"

BY Sarah Lai Stirland | Monday, March 4 2013

Photo: Flickr/Yutaka Tsutano

The White House on Monday staked out its official position on the issue of cell phone unlocking: It agrees -- in principle at least -- with the thousands of petitioners who have asked the administration to rescind the Copyright Office's unpopular decision last October to re-criminalize the practice. To that end, the Federal Communications Commission is working to see if it can "take action" to what would, in effect, reverse the Copyright Office' decision.

"The White House agrees with the 114,000+ of you who believe that consumers should be able to unlock their cell phones without risking criminal or other penalties," wrote R. David Edelman, the White House' senior advisor for Internet, Innovation, and Privacy, on Monday in response to the petition. "In fact, we believe the same principle should also apply to tablets, which are increasingly similar to smart phones. And if you have paid for your mobile device, and aren't bound by a service agreement or other obligation, you should be able to use it on another network. It's common sense, crucial for protecting consumer choice, and important for ensuring we continue to have the vibrant, competitive wireless market that delivers innovative products and solid service to meet consumers' needs."

As Edelman pointed out in his response, the White House had already pretty much taken this position on the issue when the Department of Commerce's National Telecommunications and Information Administration submitted comments to the Register of Copyrights during the rule-making procedure last year. The Copyright Office basically blew the NTIA off when it decided to remove the unlocking exemption.

What's new is the Obama administration, through this We The People petition response and through the FCC, pushing to change the anti-circumvention provisions of the more than decade-old Digital Millenium Copyright Act, and encouraging Congress to change the law.

"From a communications policy perspective, this raises serious competition and innovation concerns, and for wireless consumers, it doesn't pass the common sense test," wrote FCC Chairman Julius Genachowski in a statement issued Monday. "The FCC is examining this issue, looking into whether the agency, wireless providers, or others should take action to preserve consumers' ability to unlock their mobile phones. I also encourage Congress to take a close look and consider a legislative solution."

For its part, the Library of Congress, which houses the Copyright Office, issued a statement saying that it's not in a position to make permanent exemptions, and that the rule-making process had served its purpose as a way to measure public sentiment over the issue.

Sina Khanifar, the San Francisco entrepreneur who started the petition, praised the administration's response.

"This is a big victory for consumers, and I'm glad to have played a part in it," Khanifar said in an e-mail. "A lot of people reacted skeptically when I originally started the petition, with lots of comments to the effect of 'petitions don't do anything.' The optimist in me is really glad to have proved them wrong. The White House just showed that they really do listen, and that they're willing to take action."

Both he and Derek Khanna, the Republican Study Committee staffer who was fired from his job for writing a detailed policy memo outlining how copyright law should be overhauled for the digital age, are launching a new web site Tuesday called Fix Copyright. The site will help them to continue the process of engaging mass support to push congressional lawmakers to update the DMCA. Khanna is now a visiting fellow at Yale Law School and a copyright reform activist.

"This is a major affirmative victory for the digital generation that stood up against censorship of the internet through SOPA a year ago," Khanna told techPresident in an e-mailed note. "This is a win for innovation, small businesses, the free market and the consumer."

He continued:

"This would not have been possible without the groundwork laid by the SOPA protest last year – we were truly on the shoulders of giants.

A free society should not require its citizens to petition their government every three years to allow access to technologies that are ordinary and commonplace. Innovation cannot depend upon a permission-based rulemakings requiring approval every three years from an unelected bureaucrat. A free society should not ban technologies unless there is a truly overwhelming and compelling governmental interest.

I am also launching a website at Fixcopyright.com to continue this advocacy - ensuring that Congress fixing this problem and legalizes cellphone unlocking."

Added Khanifar: "While I think this is wonderful, I think the real culprit here is Section 1201 of the DMCA, the controversial "anti-circumvention provision." I discussed with the White House the potential of pushing to have that provision amended or removed, and they want to continue the discussion."

For its part, the industry trade group CTIA, The Wireless Association, responded to the White House comments on Monday by re-iterating its observation that consumers do have access to unlocked phones.

"The Librarian of Congress concluded that an exemption was not necessary because the largest nationwide carriers have liberal, publicly available unlocking policies, and because unlocked phones are freely available in the marketplace - many at low prices," said Michael Altschul, CTIA's senior vice president and legal counsel in an e-mailed statement. "Customers have numerous options when purchasing mobile devices. They may choose to purchase devices at full price with no lock, or at a substantially discounted price - typically hundreds of dollars less than the full price - by signing a contract with a carrier. When the contract terms are satisfied, or for a reason that is included in the carrier's unlocking policy - such as a trip outside the U.S. - carriers will unlock a phone at their customer's request."

This post has been updated with CTIA's response.