House Passes Cellphone Unlocking Bill Packed with Disappointment

The U.S. House of Representatives passed a bill earlier this week to legalize cellphone unlocking. That should be great news because the Librarian of Congress refused to do so in 2012, but the reality is the House's bill is mostly a big bucket of meh.

Smartphone unlocking bill does little to help consumersSmartphone unlocking bill does little to help consumers

Unlocking frees cellphones from use with a single carrier so customers can take their current phone with them when they move from, say, AT&T to T-Mobile. The Digital Millenium Copyright Act prohibits unlocking because it works around DRM, or digital rights management. Because of the DMCA's wording, end users can't unlock their cellphones even though the process isn't intended to violate any copyrights.

The bill that passed through the House this week, Unlocking Consumer Choice and Wireless Competition Act, will let consumers unlock their cellphones, but it comes with limitations that leave it feeling hollow. The bill's two big drawbacks: The right for consumers to unlock their smartphones dies after two years, forcing legislators to enact a new law later; and buying up phones to unlock and resell in bulk is expressly prohibited.

Spending the time to get a bill through the House that gives consumers a two year window for unlocking instead of making that an open ended option feels like a waste of time and resources because lawmakers will have to start all over again when the provision expires -- or they'll simply let it be and consumers won't be able to legally unlock their mobile phones yet again. The on-again-off-again nature of cellphone unlocking is confusing and frustrating for consumers.

In essence, the House is doing nothing more than extending the DMCA unlock exemption when the Librarian of Congress failed to do so. Instead of addressing and fixing the problem of legal unlocks, the House has simply pushed the problem out two more years.

The provision prohibiting bulk unlocking of phones poses a problem for cell service providers that otherwise would be able to buy up new and used smartphones to sell to their customers. Unlocked phones are an enticing selling tool for service providers, and smaller companies offering prepaid plans can use them to help draw in new customers.

The House bill also sets a precedent where copyright law can be used to inhibit some mobile phone businesses -- something that should be outside the purview of copyright law. The Electronic Frontier Foundation is against the bill's provision, saying,

Bulk unlockers acquire phones from a variety of sources, unlock them, and then resell them. By expressly excluding them, this new legislation sends two dangerous signals: (1) that Congress is OK with using copyright as an excuse to inhibit certain business models, even if the business isn't actually infringing anyone's copyright; and (2) that Congress still doesn't understand the collateral damage Section 1201 is causing. For example, bulk unlocking not only benefits consumers, it's good for the environment—unlocking allows re-use, and that means less electronic waste.

This bill most likely made it as far as it has because it is so bland and, at least from the law maker's standpoint, uncontroversial. Where the House sees it as a "better than nothing" bill, it's really creating bigger problems in the end. Simply extending unlocking exemptions doesn't fix the issue long term, blocking companies from legitimately unlocking doesn't help promote business growth, and putting part of cellphone business regulation under the umbrella of copyright law has the potential for unexpected problems later on.

The good news is that the bill isn't ready to be signed into law yet. It's off to the Senate now where it can undergo changes or get chewed up and lost in the political process. There are alternative bills that do a better job of addressing the smartphone unlocking issue, including the Unlocking Technology Act, which the EFF just so happens to support. The bill unbinds phone unlocking from copyright law, ending the question of whether or not doing so runs afoul of the DMCA.

Unfortunately, Congress may be leaning more towards a bill that's easier to pass instead of one that directly confronts the unlocking issue. If so, we'll be revisiting the problem in just a couple years.

[Some image elements courtesy Shutterstock]