Two days ago, the White House announced its support for carrier unlocking handsets. The administration promised an FCC/NTIA investigation as well as a willingness to "work with Congress" on legislation to fix the problem. So, we can probably count on the President's support of the new Wireless Device Independence Act, introduced last night by Sen. Ron Wyden (D-OR). The bill, which is only three pages long, has a simple goal: amend the DMCA such that it explicitly allows the unlocking of cell phones, obviating the need for a tri-yearly exemption.

The following language would be added to the DMCA's section on anti-circumvention policies:


(a) IN GENERAL.—Section 1201(a)(1)(B) of title 17,
United States Code, is amended by striking ‘‘not apply to persons’’ and inserting the following: ‘‘not apply to—
(i) a user of a computer program, in the form of firmware or software, that enables a wireless telephone handset, or other wireless device that can connect to the Internet, originally acquired from the operator of a wireless telecommunications network or retailer to connect to a different wireless telecommunications network if—
  (I) the user legally owns a copy of the computer program;
  (II) the use of the computer program by the user is solely for the purpose of connecting to such wireless telecommunications network; and
  (III) the access to such wireless telecommunications network is authorized by the operator of the network; or
(ii) persons.

Emphasis added.

The language is mostly clear and, given that it would be injected directly into the DMCA, could provide some sturdy defenses for unlockers. As a bonus, the bill would be retroactive, taking effect on January 26th, 2013. That happens to be the day that the DMCA exemptions expired so, if this bill passes, it would be as though there were never a time that unlocking phones had been illegal (well, since 2006).

The interesting part of the bill, though, is that it doesn't appear to mention the fulfillment of contractual obligations as being part of the criteria. Of course, that could be easily rectified with an adjustment to those contracts ("You agree not to unlock your phone for use on other networks until your contract is fulfilled" or something like that), but it's worth keeping in mind because when this bill goes to the floor, there could be some pushback on that front.

The main worry for carriers when it comes to users unlocking new phones is that a customer will buy a phone on-contract, pay an ETF, and get a phone cheaper than they would have if they bought it outright. In that scenario, the carrier loses money. It's a little early to say whether this new bill would encourage that kind of behavior, but this will likely be a major point of argument as this progresses.

The important thing to take away, though, is that this is where the attention should be placed if you want unlocking phones whenever and however you wish to be legal. It's unclear what, if any, ability the FCC has to effect any change in this arena, but Congress does have authority. This bill is coming out of the Senate. It's possible, with the amount of media attention this has gotten, that we may see a similar bill introduced in the House of Representatives. No matter what, though, this is the place that supporters should be focusing their attention.

Source: Scribd via CNET