21
Feb
presidentialseal

In October of 2012, the Library of Congress elected not to renew DMCA exemptions that explicitly allow end users to unlock their cell phones at will, thus ending a six year tradition. This has made a lot of people very angry and has been widely regarded as a bad move. The quest to do something about it began almost immediately. And by "almost immediately" I mean "nearly three months later and at almost the very last minute."

Still, regardless of when the outrage gained steam, the fact is it did. Quite a bit of steam, in fact. Despite the White House raising the bar for online petitions to 100,000 signatures (after the previous bar of 25,000 resulted in an entertaining, if frivolous response about why the President won't build a Death Star), you did it! You raised enough awareness and the Executive branch of the United States government now has to weigh in on whether or not it supports unlocking of cell phones.

Before we get into what the Presidential administration of the United States can actually do about unlocking cell phones, let's quickly sum up our most recent post on the subject. Namely, there is not a complete and total ban on unlocking phones. At all. You can unlock your old phone if you would like (and if the carrier won't do it for you). Carriers can unlock phones for you per the conditions of your contract that you sign when you get the phone. You can buy unlocked phones. There are options if you want or need an unlocked phone. And even if there weren't, as long as you're staying within the U.S., there isn't much you can do with an unlocked phone anyway because the network technologies and bands are so different, they're barely interoperable. Also, this doesn't affect jailbreaking or rooting your handset in any way, which is still explicitly legal according to the DMCA exemptions. In terms of control over your handset, you retain most of the control.

In other words, this petition is specifically asking for action from the President of the United States on behalf of a small minority of people who either want to take their new, likely subsidized phone to a different carrier that has a small chance of fully supporting it, or who travel internationally and were either unwilling or unable to plan ahead and acquire a phone that's capable of working on all networks they'll need to use.

This is important information because it will play into whether the President can (or will) actually do anything about it. So, what are the options?

Can The President Instruct The Library Of Congress To Change Its Mind?

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Not really, no. The most likely method that people believe the White House could directly affect the Library of Congress (the office that handles the DMCA exemptions in question) is by executive order. The President does have some limited authority to issue clarifications and instructions regarding how laws are executed and, thus, could effect some change here, right? Well, not exactly.

For starters, the Library of Congress is part of the Legislative branch, not the Executive. In other words, it's in the same family of government bodies as Congress (hence, you know, the name). While there are a large number of government agencies that work for the Executive, the Library is not one of them. The President doesn't have direct authority to tell the Register what to do.

Now, here's the thing about how executive orders work: the President can clarify or execute existing law, but he cannot change or choose not to enforce existing law. According to Article II, Section 3 of the United States Constitution, the President has responsibility to "take Care that the Laws be faithfully executed." In other words, even if the President disagrees with a law, once it's on the books he has to carry it out until it's altered (which we'll get to).

Now, the DMCA poses some unique challenges, because it is within the scope of said law to provide exemptions to the law itself. That's where the meeting every three years comes from. So, couldn't the President instruct—or at least request!—that the Library revisit its decision? Well, technically, sure. He can ask whatever he'd like of Congress. However, the law states that these exemptions come up for debate every three years. Even if pressure from the President would have any effect, the time to do that would've been back in 2011. Or, if we were going to be doing this in reaction to the Library's decision, it would've at least been back in October when the announcement was made. Not now, nearly four months later, when the law has already reverted to its pre-2006 state.

Now, even disregarding these complications, isn't it possible for the President to affect how the law is executed? I mean, he did it on the immigration thing! The Deferred Action for Childhood Arrivals delayed deportation for undocumented people who came to the U.S. as children (and meet a certain set of conditions). Couldn't he do something like this? Say that we'll put off punishments for people who unlock their phones until the next time the exemptions come up for debate?

Again, no, not really. For starters, that executive order was issued to instruct the Department of Homeland Security. The DHS is part of the Executive branch and, thus, the President has authority over how it operates. Furthermore, the President did not make any changes to the actual legal status of people in the country. He only permitted the DHS to, at its discretion, offer a certain type of delay of deportation. There is no direct path from deferred status to citizen. It would still require Congressional action to have any permanent effect.

That move, in itself, was rather controversial and some interpreted it as an overreach of executive authority. We are not here to debate that (and please for the love of crap, let's not get into it in the comments). However, it helpfully illustrates a serious point: not only are there limits to what the President can do with executive power, but even within that realm, it could be very costly to proceed with it if it reaches too far. The White House still has to work with Congress (not to mention the American public) on a variety of issues and, even if he could say "Alright, cell phone unlocking is still totally illegal, but no one can be punished for it for a couple years" (which would step on the rights and authority of basically everyone from Congress to the Judicial branch to private companies), it would make him a lot of enemies to do so and, sorry to be so blunt phone lovers, but he's got bigger fish to fry.

Okay, What About Promoting Legislative Action?

President Barack Obama delivers a health care address to a joint session of Congress at the United States Capitol in Washington, D.C., Sept. 9, 2009. (Official White House Photo by Lawrence Jackson)</p>
<p>This official White House photograph is being made available only for publication by news organizations and/or for personal use printing by the subject(s) of the photograph. The photograph may not be manipulated in any way and may not be used in commercial or political materials, advertisements, emails, products, promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House.<br />

Alright. You're getting closer to actual Presidential authority here. It is fully within the power of the office of the President to introduce and promote legislation for the consideration of Congress. That's the important part to keep in mind: even if the White House made it a priority to push a bill that would make it legal to unlock cell phones, it would still have to make it through Congress, which is no easy feat.

However, let's step back just a second and see if that's such a good idea.

"Whoa, whoa, whoa Eric," I hear you cry. "Not only have you not-so-subtly been implying that very few people even need to unlock their phones, now you want to say it's not a good idea to fix the problem at all?! I think I've heard enough!"

Hang on, now! Hear me out. Do I think a very small minority of Americans are affected by the new (and by that I mean 'old') unlocking policy? Sure. But that doesn't mean it's a good thing. Technical limitations aside, I think it's preposterous that carriers decide that you can't use your phone on other networks just because you're under contract. As long as you continue to pay AT&T a bajillion bucks a month for two years, why should they care if you use it on another carrier? That's roughly like being mad because the wife you married just to get a green card goes on a date with another guy. It's silly!

However, how exactly is it illegal to unlock phones in the first place? Why, it's thanks to the DMCA, of course! The Digital Millennium Copyright Act was signed into law in 1998 and was initially designed to discourage commercial theft of artistic work and to encourage investment in content creation. What part of that has anything to do with cell phones? None at all.

However, the specific portion of the law that regards circumvention of copy protection measures has been (arguably) inappropriately applied to the unlocking of cell phones. This is bad. This is an overreach of what the DMCA was designed to do and it takes choice away from consumers and puts it into the hands of already-inefficient and powerful carriers. That being said, there is one very important, key fact that anyone who wants reform to this law must keep in mind:

Banning cell phone unlocking is the least offensive sin of the DMCA.

This might not have been the case a few years ago but, I'm sorry to say it guys, there just isn't that much on the line anymore. At this point, if you are up the creek without a paddle, under a contract and suddenly have to switch carriers, at worst you might pay a few hundred to a thousand dollars to break contract and get a new handset. This sucks, but it's not the end of the world.

You know what is the end of one person's world? A $220,000 fine for downloading and sharing 24 songs. That person would be Jammie Thomas-Rasset who has been fighting the RIAA since 2005. After several trials and years in court, it was finally determined in 2010 that, according to the statutory damages provided for in the DMCA, she owed $1.5 million dollars to the plaintiff. One. Point. Five. Million. For 24 songs. This was later whittled down to a measly $220k, which is still a life-crushing amount of debt for a mother of four.

Not enough? How about the fact that the RIAA famously said in 2011 that LimeWire owed it $75 trillion in damages? To put that another way, the RIAA believed—and more importantly, according to the way the DMCA is written, can theoretically make the argument—that one company owed it more money than exists in the entire world. These two examples (out of many) amply demonstrate that the statutory damages that the DMCA provide are a much, much bigger problem than the anti-circumvention policy.

But we're not talking about that, are we? We're talking about circumvention of copy protection measures, right? Well, okay. Let's talk about that, then. I mean, what could be worse than not being able to unlock your phone?

How about having your entire business model attacked because the MPAA doesn't like the technology you use? That's the story of Kaleidescape, a company that was founded in 2001, began marketing products in 2003, yet was still bogged down in legal proceedings as recently as 2009. Why? Because their devices allowed a user to make one copy of a DVD on a central server for home use only. It could not burn any extra copies, nor could it duplicate a disk beyond what you are legally allowed to do (namely, make copies for personal use). This is one example of many where format-shifting, though explicitly legal, is effectively banned because content companies have a de facto monopoly on distribution models due to the anti-circumvention clauses. To put it even more bluntly, movie studios and record labels can block technology they dislike from existing.

Why do I go off on this tangent? Because if the spearhead of a campaign for reform to the DMCA is "We want to unlock our cell phones, because all the other ways we have to get unlocked cell phones aren't enough!" no one will care.

I'm very sorry, Android community. I love you guys and you have been good to me (most of you, anyway). But the fact is that coalitions and organizations have tried time and time again to get meaningful, effective reform to the DMCA and failed for two basic reasons: a.) most people don't understand it and 2.) of those that do, most don't care enough to do anything about it.

The Way Forward

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The last time we saw any major push for changes to the way our Congress approaches copyright, open technology, and the internet was the SOPA protests. Those were massive and they got a lot of people's attention. That was also the exception to the rule. For every one protest that gains massive media attention, there are a thousand that fizzle in comment threads or online petitions.

The phone unlocking policy needs to change. It does. I am with you on that 100%. However, if you want to have any tangible effect, there are better ways to go about it. For starters, recognize the place of cell phone unlocking in the context of the broader set of technology laws. If you make unlocking cell phones the centerpiece of reform, then the best, most appropriate course of action you can hope for is an amendment to the DMCA (which is something that not only can happen, but is something the President can push for). However, you'll have a tough time of it because, in terms of sheer volume of supporters, you'll be in pretty isolated company. Keep in mind that over 119 million people voted in the last election for the President. Compare that to the 100 thousand people that signed this petition and your odds at getting the White House to care are slim.

However, join forces with other copyright and technology related issues and you might actually stand a fighting chance. The trouble is, when most of us see something saying "Reform the DMCA! Sign this petition!" we ignore it. We shouldn't, but we do. So, here's an idea... don't do that?

Organizations like the EFF, Fight for the Future, and Public Knowledge have repeatedly sought for reform to U.S. copyright for the last decade and in most cases they end up ignored. The trouble is, if anything is going to change, people need to demand it. Cell phone unlocking is a sexy issue because it's fairly easy to grasp, even if people aren't entirely sure why they need it. "Circumvention of copy protection measures" is barely even English.

However, if you managed to wade through the last 2400 words, then chances are you're willing to learn something for yourself (I have no illusions that this article is entertaining or fun). So, if you really want to do something about cell phone unlocking, then join forces with the people who want to do something about restrictions on format shifting and the ones who want to reform statutory damages. Instead of a hundred different petitions that can be ignored individually, work with other people to build a larger platform. More simply: if you advocate for your right to unlock cell phones but haven't pushed for DMCA reform, you have missed the point.

It's easy to get cynical and believe that no one listens to these petitions and rally cries. The truth is, though, that's only kind of true. They don't all get ignored, only most of them. The ones that do get through, though, are powerful. Oh, and not for nothing, but remember Fight for the Future? I mentioned them a couple paragraphs back. Well, they were one of the groups that first started organizing SOPA protests and held American Censorship Day on November 16th, 2011, which encouraged Reddit to join in the statement two months later, followed by Wikipedia and Google, eventually leading to the hugest blackout in internet history.

It's not boring, it's not impossible, and it's not just about phones, guys.

Eric Ravenscraft
Eric is a snarky technophile with a taste for the unusual. When he's not obsessing about Android, you can usually find him obsessing about movies, psychology, or the perfect energy drink. Eric weaves his own special blend of snark, satire, and comedy into all his articles.

  • tehsusenoh

    "This has made a lot of people very angry and has been widely regarded as a bad move."

    Yup, another reminder of how great Android Police is.

    • Zarko Korac

      LOL, first two comments in the same minute about great Douglas Adams. He must be chuckling up there somewhere.

  • Zarko Korac

    Just wanted to say I like the Hitchhiker's guide reference in the beginning of the text.

  • marcusmaximus04

    Ok, so I think I get what this article is saying: We need MORE people to sign that petition! EVERYONE SIGN IT, RIGHT NOW!

    • http://www.androidpolice.com/author/eric-ravenscraft/ Eric Ravenscraft

      YOU MAKE ME SO ANGRY. <3

  • irtechneo

    Well written article Eric.

    • http://www.androidpolice.com/author/eric-ravenscraft/ Eric Ravenscraft

      Thank you. :)

    • Paul_Werner

      I came here to say that too... oh and it did keep me entertained while I'm downloading Ubuntu for my Nexus (which is purchased unlocked so I don't have to deal with this issue if it ends up not changing)

  • Adam Jones

    "..or who travel internationally and were either unwilling or unable to plan ahead and acquire a phone that's capable of working on all networks they'll need to use."

    This is where I stopped reading.

    What about those who travel internationally, and bought a phone which has GSM bands relevant to the country they travel to.. but would prefer to use a local SIM card while abroad to avoid exorbitant roaming charges?

    • http://www.androidpolice.com/author/eric-ravenscraft/ Eric Ravenscraft

      You should've kept reading, then. I happened to say that, whatever your issue, yes it's important, but you're still a minority and there are more effective ways to get the change you want.

      But you know, "I read a sentence I don't like, so shut the hell up" works too. :P

      • Adam Jones

        My point was simply that, 99% of people I know who want to unlock a phone are looking to achieve something reasonable (like avoid global roaming charges); not a knee jerk reaction to poor planning.

        • http://www.androidpolice.com/author/eric-ravenscraft/ Eric Ravenscraft

          I understand that. My point is simply that 100% of people looking to unlock a phone don't make up a whole lot of people. If you want to be able to unlock a phone (which is totally reasonable!), don't stand on an internet street corner saying "THIS IS A SUPER IMPORTANT ISSUE." Join up with other people who are working on similar issues that hurt people a lot more. You'll still get what you want (or at least have the same chances they do), but more people will take you seriously when you're trying to *share* a platform with people who have it way worse than you do, rather than take attention away *from* them.

          That part came later in the article than where you stopped reading, though.

          • http://brgulker.wordpress.com/ brgulker

            So as near as I can tell, after reading the article, and reading your comments here, is that this particular minority of people doesn't have quite enough members and doesn't suffer enough negative consequences to be important enough to care about?

            I get the point that there are big issues, and that owing a bazillion dollars for sharing 24 songs is almost beyond words. But that doesn't mean we ought to not care about other problems.

            Should I give up caring about the rights of homosexuals in Africa - where legislation was just passed that can kill them for being gay - because that population is smaller than the population than the one dying of AIDS?

            That's a silly argument. You don't get to tell me or anyone else how we should prioritize things that are morally important to us.

            And I'll never sim unlock a phone, but I'm opposed to any unjust law that says I'm not legally allowed to do so, and so I signed the petition which took all of 2-3 minutes, and now the White House has to actually say something about it.

            And this is a bad thing? C'mon.

          • http://www.androidpolice.com/author/eric-ravenscraft/ Eric Ravenscraft

            I never said you shouldn't care. In fact I specifically said that it *is* a problem. I dedicated a whole paragraph to saying how this situation is silly.

            I'm laying out a practical argument. Be annoyed with me all you want. Go ahead. But it's a waste of your time. I'm not saying people *shouldn't* care, I'm saying they *don't*. No one in Congress or the White House (or most of America) gives a fuck if you can't unlock your phone. So, if you want to more effectively legislate your issues, team up with people in similar, related boats.

            I will also say that if you're going to compare unlocking cell phones to homosexuals in Africa being murdered, people are also less going to be less likely to take you seriously.

            I never said the White House talking about it is bad. But I do think nothing will come of it and those 100,000 people could've been more productive directing attention somewhere else.

          • http://brgulker.wordpress.com/ brgulker

            I didn't compare the situations. I applied your logic to a different situation to see if it holds up. To use your words, it ends up sounding silly doesn't it?

          • http://www.androidpolice.com/author/eric-ravenscraft/ Eric Ravenscraft

            You didn't use my words at all. And now you've completely ignored my comment, too. There are only so many ways I can say "Yes your issue is important" while you say to me "QUIT SAYING MY ISSUE ISN'T IMPORTANT."

            So this conversation has ceased to be productive. Bye bye.

          • http://brgulker.wordpress.com/ brgulker

            Way to alienate your loyal readership by having thin skin and being completely incapable of seeing a differing perspective.

            Goodbye and good riddance. Just yesterday I thanked you all for the good work you do here and today you completely miss the point that several of us try to raise.

            Terrible argument and even worse response.

          • Mark Curtis

            Let's see if I can reword what Eric's article is about.

            There's a country of let's say 1000 people. 10 sign a petition that says "Let us unlock cell phones" It won't be more than that because the other 990 don't understand it and/or aren't affected so don't care.

            Since it's such a small number, the rulers won't do anything about it.

            Let's say those same 10 people partnered with 90 others that sign a petition that says "Reform the DMCA" (of which unlocking cell phones would be a part of). This 100 person group is much larger so the rulers would be far more likely do to something about it.

            Even if you respond with "Well we'll make more people care about unlocking cell phones" it doesn't matter, if you team up under a more general thing, it will always be more popular. Foo < Foo+Bar (since there would be at least ONE person for bar)

          • http://brgulker.wordpress.com/ brgulker

            Do you realize that it takes 2 minutes to sign one of these petitions? I like what you guys do here at AP but this is just a terrible argument.

            No matter how small this victory is for those of us who support openness it is still a victory.

            What do we get from AP? An argument telling us that there's really nothing to see here. Move along to more important things.

            Instead of celebrating the small victory and using it as a launching pad for bigger ones, which is the message you might expect.

            This simply isn't the finest moment of AP, and you're getting criticized for it.

          • John

            Actually he is saying if you help fight aids and bring your homosexual argument into that it will get more attention and have a better chance of getting resolved. He isn't minimizing the issue, just encouraging you to change the approach for a chance to actually get change to happen.

  • IncCo

    What is the TLDR version for us who dont live in the US and dont really care enough to read this.. ?

    • http://www.androidpolice.com/author/eric-ravenscraft/ Eric Ravenscraft

      If you don't live in the U.S.?

      "Everything's fine, nothing is ruined."

      If you don't care?

      "Why did you click the headline?"

      ;)

    • Viktor Å

      As a fellow Swede, I found it quite worth the read - if nothing else, you'll have something to discuss by the coffee table at work. :)

  • http://profiles.google.com/jeremyrreger Jeremy Reger

    Amazing post..

  • r00t4rd3d

    The DMCA can kiss my balls.

  • Nick McCrory

    One of the best articles I've seen written on this subject. Well done sir.

  • http://twitter.com/mrjayviper Jayel Villamin

    do they actually verify that the petitioners can't actually make a petition? why would the president of the US care what a person from Fiji thinks about it's phone sim unlocking rule?

  • http://codytoombs.wordpress.com/ Cody Toombs

    I know I'm completely dreaming here (and I would have even before this article), but I'd love to see this little issue and this petition getting enough media attention that it becomes a catalyst for a real and meaningful change to the DMCA. If news a few major news outlets covered this and bring up the point that the DMCA shouldn't even be relevant to cell phone unlocking, maybe it'll get some of the right attention.

    I'm with Eric, this petition isn't likely to have any direct result. However, now that it's happened, I'm hoping that a silver lining emerges.

    • paleh0rse

      Good luck gaining traction in the mainstream media -- entities that are wholly owned and operated by the very same folks who run and profit from the RIAA and MPAA. Therein lies the biggest hurdle... :(The best chance we have is to gain traction on social networking and other uncontrollable outlets. In other words, we need to figure out a way to make the issue "viral." In order to do that, we first need to figure out how to translate the entire issue into English that everyone, regardless of technical proficiency, can understand. That is a very tall order, and it's exactly the struggle groups like the EFF have been trying to overcome for years. It still amazes me that we were successful with SOPA, so we need to study the success of that example and apply those lessons to dismantling (or simply reforming) the DMCA. Ultimately, we need to make problems caused by the DMCA akin to the potential impact of gun restrictions -- the feelings we need to invoke in potential supporters need to be THAT guttural or tangible. We need to inspire a VERY large number of citizens to say and feel things like "oh damn, I'll go postal if they don't fix this DMCA crap!!!"It's not going to be easy, that's for damn sure...

  • http://www.facebook.com/nyczducky Albert Kim

    In all honesty, I rather have the stupid mofos in Congress work on getting us out of this economic hole. I rather have a better economy than the ability to unlock my phone. I'm going to do it regardless anyway, legal or not. Who's going to kick my door down just for hacking my phone?

  • Jeremy Gilliam

    Very informative and well written. I may not use unlocked devices but would like the choice in the future if I choose. This action will only promote manufacturer bloatware and the inability to remove it. Great job Eric!

  • Josh Legoza

    Fantastic work Eric! You make a great point about the effectiveness of concentrated efforts vs. easily ignored smaller efforts.

  • pat1

    It is my phone if i want to unlock it why do thay care. What's Next we have to ask permission to take a shit

  • Robert Jakiel

    LOL! Do you actually think anything will come of this? This administration is eviscerating our freedoms and liberties with attacks on the 2nd, 4th, 5th, 9th and 10th amendments with the signing of the NDAA, FISA, CISPA, renewal of the Patriot Act, gun control and gun ban push as well as stomping on states that have legalized marijuana. Do you REALLY think that this moron we call a president and his a$$ clown administration is going to do anything?

    • turb0wned

      Agreed. Hopefully he doesn't even read it and just signs it like the others.

    • MeCampbell30

      Don't talk about things you have no knowledge of. FISA courts were the answer to warrantless wiretaps, NDAA didn't change the law (the Supreme Court already ruled on indefinite dentition), the major controversial provisions of the Patriot act have already been struck down or have sunset, gun control isn't a violation of your second amendment right, and CISPA is not law and was rejected by the president because of its impact on civil liberties.

      Please leave the tin foil at home.

  • paleh0rse

    Since the mainstream media would never willingly promote this cause because they are owned and operated by the very same groups that comprise the RIAA and MPAA, what we need to do is study the SOPA success story and somehow make this issue viral.

    We need to translate the problems caused by the DMCA into language and emotions that EVERYONE can understand, not just us geeks. Sadly, the vague nature of the DMCA itself makes it very difficult to create such a translation, and then even more difficult to present it in a graphic or other visual format for non-techies to see and share on Facebook. Since the vast majority of citizens have never been directly impacted by the law (at least knowingly), there is simply no easy way to invoke the emotion necessary to drive a viral campaign.

    If examples of injustices like those included in the article above haven't inspired such a reaction, I'm really not sure what would work instead. The answer lies somewhere in the success of the anti-SOPA campaign, so we just need to find it...

  • OmarioAmriky

    This is what happens when old farts govern a nation.
    'MURI -*cough* *cough* *uses oxygen inhaler*-CA!!!!

  • alex22808

    I am afraid to say i completely agree with the article. the success of the SOPA protest were down to the fact that the amount of state monitoring and control has been a huge issue simce the begining of the digital age, hence people are clued up and are passionate in their opinions. phone unlocking however is fairly irrelevant in comparison SOPA would have affected the entire world and thus people all over the world were ready to fight it tooth and nail. however, phone unlocking is used by and understood by a relatively small percentage of people. take for example the upcoming play station game, watch dogs. its all about how we are all digitally connected and how much information about us that can be found online. it is lined up as a triple aaa title. take this example back to phone unlocking and you'll see the vast disparity in how much people actually care about the unlocking.

  • Dex Dextor

    It will just get worse. Americans are Sheep. Look what we pay for TV Internet and cell service compared to the rest of the world and its slow as a snail

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