We recently wrote about the US petition to allow mobile phones to be unlocked, which was prompted by a change in the application of US law. In short, the pro-copyright DMCA law was extended to make it illegal to unlock a mobile phone, an example of government overreach which is both unjustified and against the interests of consumers. Thankfully, the official response to the petition was surprisingly favourable.
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. 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.
So what will the US government to fix this mess?
The Obama Administration would support a range of approaches to addressing this issue, including narrow legislative fixes in the telecommunications space that make it clear: neither criminal law nor technological locks should prevent consumers from switching carriers when they are no longer bound by a service agreement or other obligation.
It is worth noting that this does not mean the government will execute a complete reversal. Violating a contract is not the same as committing a crime. However, this statement only speaks against criminalizing those who are no longer bound by a contractual agreement. Saying that criminal law should not be applied to consumers who are no longer bound by a service agreement is not the same as saying criminal law should not apply to unlocking phones. In that sense, the US government may still retain the legal power to imprison consumers for 5 years if they violate the terms of their contract with their telecoms service provider – and this is still a massive and undesirable extension of government enforcement into a purely civil matter.
The common sense approach of the White House was somewhat forced by the Chairman of the FCC, the US comms regulator, when he issued a statement saying:
From a communications policy perspective, [criminalizing unlocking] raises serious competition and innovation concerns, and for wireless consumers, it doesn’t pass the common sense test. 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.
It is common sense that when somebody buys a phone, they should be free to use it as they please. It is also common sense that if certain conditions were attached to the purchase, then the vendor should have a legal right to sue if those conditions are violated. But it does not make sense for telcos to watch their customers being fined or even imprisoned by government because the customer broke the terms of a contract. That means the telco has lost control over the relationship with the customer, and is letting the government get too involved in how a private business manages relations with its customers. Nobody wants to see a telco Customer Services function spending a lot of time negotiating with a government-appointed prosecutor over the fines that the government will impose on a customer for violating the contract between customer and telco. Smart telcos will not just applaud the common sense advocated by the Obama administration thus far, but will want government to go further, and completely reverse this unhelpful trend towards the criminalization of civil agreements.