Should it be illegal to unlock your own cellphone?

posted at 11:21 am on February 22, 2013 by Ed Morrissey

The answer to that question is another question: who owns the phone? Consumers normally don’t pay retail prices for their phone, but instead pay an artificially low price in exchange for a two-year contract.  But are those prices truly “artificial,” or are the retail prices ridiculously inflated to dissuade the kind of free choice that might undermine the lock-in contract business model of the cell providers?  Derek Khanna wrote a paper for the Republican Study Committee blasting the criminalization of the unlock ban, and got fired two months later* by the RSC. 

Reason TV’s Nick Gillespie talks to Khanna about the question of who owns the phone, why hacking a cell phone gets a steeper sentence than politicians in Chicago facing corruption charges, and the broader issues of intellectual property and the need for open-source development:

Last fall, Khanna earned notoriety - and a pink slip – for a public memo urging GOP members of Congress to rethink their stance on copyright law.

More recently, in a column for The Atlantic, Khanna blasted a new ruling that criminalizes the unlocking of cellphones under the Digital Millenium Copyright Act (DMCA). Unlocking the phone simply means that a person could use a phone designed for one carrier on another carrier, assuming they had switched his plan. In addition to civil penalties, breaking this law could land you in prison for up to five years and force you to pay a fine of up to $500,000.

“In 1998 a poorly written statute, the DMCA, was passed and it prohibited a wide swath of commonly used technology in the name of defending copyright,” Khanna explains. “If this is allowed to stand, then the answer is you don’t own your phone.”

A White House petition to change the law recently reached the 100,000 signature threshold, which means the Obama administration will have to give an opinion on the matter.

Oddly, this comes up just as I’m trying to unlock an old T-Mobile phone for possible alternate usage.  I paid retail for it (north of $400), so no one gave me any trouble when I wanted to get the unlock code.  If it was my current Samsung III, I’d bet I’d have had more pushback on the question.

Be sure to watch it all — it’s long, but intriguing.  At the 14:30 mark or so, Khanna discusses the way in which the DMCA interferes with political speech, thanks to a “heckler’s veto” by claiming spurious copyright violations.

Update: I originally wrote “got promptly fired,” but his termination was two months later, Dustin Siggins reminded me in an e-mail.  Few doubt that the paper and the firing were related, though.


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