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?
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?
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
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.