The House’s cellphone unlocking bill: Thanks but no thanks

How hard can it be for Congress to make it legal for consumers to switch mobile networks without having to buy a new phone?

Too hard, evidently.

The House is scheduled to vote Tuesday on a bill that was supposed to clear the way for consumers to unlock the phones they buy from wireless companies after they’ve fulfilled their contracts. But the measure, which was modest to begin with, has been rendered irrelevant by voluntary agreements on unlocking that the Federal Communications Commission obtained from the wireless companies. The bill was also changed at the last minute in a way that arguably weakens consumers’ ownership rights, prompting some consumer advocates and Democrats to withdraw their support.

The current version is so bad, consumers would be better off if Congress did nothing at all.

At issue is a dubious interpretation of copyright law that deters people from moving their phones from one network to another. Each mobile carrier typically sells phones with electronic locks that prevent them from being reprogrammed to work on rival carriers’ networks. The U.S. Copyright Office, acting through the Librarian of Congress, ruled in 2012 that removing the locks violated the 1998 Digital Millennium Copyright Act, which forbids the circumvention of technologies that protect copyrighted works.

The ruling was bizarre, considering that the locks inside phones don’t protect against software piracy; their only real purpose is to protect the mobile carriers’ business model. And the carriers have (and use) better tools to recover the subsidies they put into the phones they sell, most notably contracts that impose hefty early termination penalties.

The 1998 law requires the Librarian of Congress to revisit the anti-circumvention rules every three years, which means the Electronic Frontier Foundation and other consumer advocates can try to set things right in 2015. Sadly, however, the default interpretation of the cellphone locks is that they are covered by the anti-circumvention ban.

The Copyright Office’s decision, which took effect early last year, led more than 100,000 people to petition the White House for help. Tech-friendly lawmakers lined up to offer bills, including an elegantly simple one by Sen. Amy Klobuchar (D-Wis.) that would require mobile companies to let customers unlock the wireless devices they buy, and a more sweeping proposal by Sen. Ron Wyden (D-Ore.) to exempt wireless device unlocking from the anti-circumvention ban.

The best of the bunch was a bill by Rep. Zoe Lofgren (D-San Jose) and a bipartisan group of co-sponsors to limit the 1998 law’s anti-circumvention rules to locks that protect against piracy. That bill also would have declared that it was not copyright infringement for the owner of a mobile device to unlock it for the purpose of switching to another network.

The House, however, is scheduled to take up a different measure Tuesday afternoon, HR 1123 by Judiciary Committee Chairman Bob Goodlatte (R-Va.) and co-sponsors from both parties. As introduced, it would simply have replaced the Copyright Office’s 2012 ruling with its decision in 2010 that cellphone owners could unlock their phones without running afoul of copyrights. It also would have called on the Librarian of Congress to decide within a year whether to extend the exemption to all other locked wireless devices, such as tablets.

The relief offered by the bill would have remained in effect only until the Librarian of Congress reviewed the anti-circumvention rules again in 2015, so it hardly seemed worth the effort. The version that the House is slated to vote on Tuesday also includes a new provision effectively barring devices from being unlocked in bulk for the purpose of reselling them.

The latter change disturbed Lofgren (a member of Goodlatte’s committee) and fellow Silicon Valley Democrat Anna Eshoo, who accused Republicans of adding the provision in secret after the Judiciary Committee approved the bill. The proposed ban on unlocking for the sake of resale, they argued in a letter to colleagues Monday, is an inappropriate use of copyright law to stop people from disposing of the devices they buy as they please.

“Congress should work to roll back abusive practices that use copyright law to prevent owners from having control over the devices they lawfully own,” Lofgren and Eshoo wrote. “What it means to ‘own’ a device that has been purchased is what’s at stake here. The new addition to the bill puts the effort to stand up for the property rights of the owners of technology devices at risk.”

Public Knowledge, a technology advocacy group, agreed. “Even if Congress believes that bulk unlocking is a problem, it’s clear that it’s not a copyright problem, just as individual unlocking is not a copyright problem,” said Sherwin Siy, the group’s vice president of legal affairs. “A bill designed to scale back overreaching copyright laws should not also endorse an overreach of copyright law.”

Both Public Knowledge and the Electronic Frontier Foundation withdrew their support for the measure after the new provision was disclosed last week.

The House plans to bring up HR 1123 under an expedited procedure that forbids amendments but requires a two-thirds vote to pass. With some luck, Lofgren and Eshoo can rally all the supposedly tech-friendly members in the chamber to knock the bill off track.

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