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Congress' Latest Proposal To Fix Cell Phone Unlocking Problem Flawed, Says Advocate

BY Sarah Lai Stirland | Tuesday, March 12 2013

Congress' latest legal proposal to respond to consumers' frustration with their choices of mobile providers falls short, according to one of the advocates who's been leading the charge on the issue.

Sen. Patrick Leahy, (D-Vt.) introduced new legislation Monday that would reverse a Fall 2012 decision by the Library of Congress that once again makes it a criminal offense punishable with steep fines and jail time if smartphone owners unlock their cell phones without the authorization of their cell phone carriers.

The bill would temporarily restore a 2010 exemption to the Digital Millennium Copyright Act created by the Library of Congress rule-making procedure, meaning that cell-phone owners could unlock their cell phones if their contracts have expired, and move to another wireless carrier. It would then again fall to the Register of Copyrights (housed within the Library of Congress) to go through the whole exemption process again in 2015 to determine whether to extend that exemption. Leahy's bill also instructs the Register of Copyrights to revisit the issue of whether to include tablets in the category of devices to be exempted from the unlocking rule within a year of the enactment of the proposed law.

Leahy is the chairman of the Senate Judiciary Committee, which has primary jurisdiction over copyright law. His bill has the support of the committee's top Republican Chuck Grassley of Iowa, and two Republican senators from Utah, Orrin Hatch and Mike Lee. Sen. Al Franken, (D-Minn.) is also a co-sponsor.

In a statement to the press, Leahy's office says that the leaders of committee's House counterpart, Reps. Bob Goodlatte, (R-Va.) and John Conyers, (D-Mich.) are also expected to introduce similar legislation.

In its current form, the lawmakers' proposed legislation fails to heed the critiques of legal experts and activists, who have been advocating for deeper structural changes with the goal of removing some of the law's more unusual features and unintended side-effects.

In an e-mail to reporters, Sina Khanifar, a San Francisco entrepreneur who's been advocating an overhaul of digital copyright law, said: "It doesn't address the root of the problem, Section 1201 in any way."

Section 1201 refers to the anti-circumvention section of the law.

Neither the creators of unlocking technologies and tools or individuals should be subject to criminal penalties for unlocking phones and creating software to unlock phones, said Derek Khanna, a former congressional staffer at the House Republican Study Committee.

"In our world, if you break the contract, and your phone provider wants to smack you down for it, they can do that, but the federal government should not be involved in that transaction at all," he said. "To my knowledge, when you violate your mortgage or your lease, those are serious transgressions that go to the courts, but you don’t go to jail. It’s not a criminal felony."

Both Khanna and a broader coalition of digital rights groups are asking members of Congress to enact broader changes, which includes allowing consumers to unlock their phones regardless of contract status, and without having to face criminal penalties. Khanna says he is advocating for a narrower set of changes to the law than the broader group of activists that include the Electronic Frontier Foundation and a group of startup companies.

Senators have introduced at least three bills in the past few days to address the cell-phone unlocking issue. Khanna said that a bill introduced recently by Oregon Democrat Ron Wyden was the best of the lot because it permanently legalizes personal use of unlocking technologies.

Khanna's also looking to Rep. Jason Chaffetz, a Republican from Utah, to introduce legislation that might decriminalize the act of unauthorized unlocking of cell phones.

"I’m not surprised that the primary sponsors of SOPA are again trying to push legislation that will not solve the problem," he said, referring to the Stop Online Piracy Act from 2012. "But just because the SOPA sponsors are pushing it means that it’s the de-facto bill. Those guys were wildly discredited. Having worked on the Hill, I know that they don’t have the last word."

Putting the decision-making process back into the hands of the Register of Copyrights is "crazy" he added.

"The Library of Congress just issued a statement saying: 'We understand that 114,000 of you just signed a petition, but we’ve made our decision,' so why would you possibly allow for them to decide again?" he said. "It’s clearly not listening to what the people wanted, and it’s really a classic story of Congress refusing to do their job. It’s easier for them to pass it off to an unelected bureaucrat than making hard decisions.”

This story has been updated to fix a misattribution. Sina Khanifar sent the e-mail note out about the cell-phone unlocking legislation and how it relates to Section 1201 of the DMCA.