What you need to know about the government's fight to unlock your cellphone

Seventeen years after passing legislation that made unlocking potentially illegal, Washington, DC has decided it hates locked cellphones after all.

In late February, copyright reform advocate Sina Khanifar’s White House petition passed the newly-raised 100,000-signature threshold, requiring Obama to address whether unlocking phones should be explicitly legal. Most petitions result in a polite, noncommittal brushoff, but this one was different: a few weeks later, the White House responded with strong agreement. "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," said White House advisor R. David Edelman. "It's common sense."

Within a day, several members of Congress had announced plans to legalize unlocking. At this moment, three Senate bills and one House bill have been introduced, with more on the way. The issue has broad bipartisan and popular support, and there’s a good chance at least one of these bills will get traction. But with multiple strategies to choose from to address a complicated legal situation, what does this mean for people who just want to unlock their phones?
The cellphone unlocking debate centers on the controversial Section 1201 of the Digital Millennium Copyright Act, which makes it illegal to "circumvent a technological measure" that controls access to a protected work. While 1201 was meant to prevent hackers from distributing the movies or music found in physical media, it also ended up creating a legal gray area for cellphone unlocking. If cellphones are containers for their firmware, could modifying them to work on another network be treated like cracking a DVD to copy it?
Until earlier this year, unlocking was explicitly legal. Every three years, Librarian of Congress can add exemptions that justify circumvention in limited circumstances. While having an exemption specifically removes liability, proceeding without one isn’t specifically illegal either. It does, however, make your case much less airtight in a potential suit. While a hypothetical citizen probably isn’t going to get sued for unlocking an iPhone, they face the uncertainty of not knowing how a court would rule, as well as damages of $200 to $2,500 per phone if convicted. And people who unlock phones for profit could get criminal penalties of up to $500,000 or five years in jail.
The first exemption for private unlocking was granted in 2006. At that point, Register of Copyrights Maria Pallante had concluded that unlocking a phone wouldn’t jeopardize copyrighted software, and that since most phone companies wouldn’t unlock a phone even after the contract was up, people were being left with no choice but to buy a new one: "Software locks are access controls that adversely affect the ability of consumers to make noninfringing use of the software on their cellular phones," she wrote. The exemption was later renewed in 2009.
By Adi Robertson
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