WH now opposes new rule criminalizing cell-phone unlocking

posted at 8:41 am on March 5, 2013 by Ed Morrissey

As Glenn Reynolds remarked last night, “On this issue, I’m 100% with [the White House].” After Derek Khanna and his allies received well over 111,000 signatures on a White House petition protesting the new rule from the Library of Congress that criminalized the unlocking of cell phones, the Obama administration has responded by recognizing how ridiculous the law was, and now says it will work to overturn it:

In January, the Library of Congress made unlocking a violation of a little-known provision of copyright law. Anyone who tried to do so could face criminal and civil penalties.

The decision quickly sparked an outcry from online activists. Taking to social media, blogs and the White House’s own protest forum, they collected over 114,000 signatures in just a few weeks.

In response, the Obama administration said it would support legislation to overturn the decision by the Library of Congress, which houses the U.S. Copyright Office. The White House also called on the Federal Communications Commission to intervene.

“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,” David Edelman, President Obama’s senior Internet adviser, wrote in a blog.

The Washington Post credits “Internet activists,” and later mentions Khanna’s role in publicizing the decision and generating the grassroots outrage that forced the White House to act:

For now, cellphone unlocking remains illegal. But the quick response by the White House demonstrates how officials have become responsive to Washington’s emerging powerbase: Internet activists. …

The quiet change in rules was soon discovered by some tech policy experts, including a 25-year-old former House Republican researcher, Derek Khanna, who wrote a critical article about the decision that was published by several online news outlets.

We should note that the Obama administration had nothing to do with the DMCA or the decision by the Library of Congress, which has some jurisdiction in copyright law interpretation.  The DMCA passed a Republican Congress in 1998 and was signed into law by Bill Clinton.  At the time, freedom-of-information activists warned of the consequences of some of the bill’s language, but it has largely gone unnoticed in between until House Republicans first floated the Stop Online Piracy Act (SOPA) in 2011.

Internet activists shouted down that attempt, and Khanna — who worked for the Republican Study Committee — wrote a policy brief the next year that opposed SOPA-like efforts that protected big players in the market.  That produced some outrage by corporations that the GOP wanted to court, and Khanna found himself out of a job within a few weeks.  He has spent his time opposing efforts such as these, which would have made unlocking a cell phone a felony with a punishment up to five years in jail and a $500,000 fine. The White House has made the right decision in pushing for a repeal of this decision, and Republicans should have taken the lead on this long before this.

I interviewed Khanna a little over a week ago for my daily show, which I’ve re-embedded here. I’m also re-embedding the Reason TV interview of Khanna conducted by my friend Nick Gillespie, which is well worth another watch.

Video streaming by Ustream

Congratulations to Derek, and hopefully we’ll all be more vigilant in the future on this issue.


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Yeah one of the few places (and the AT&T T-Mo merger) that I actually agree with the Barry administration.

Defenestratus on March 5, 2013 at 8:45 AM

3 am call from Benghazi for President Obama…

….can someone unlock his phone so he can receive the call?

PappyD61 on March 5, 2013 at 8:46 AM

“What are you in for?”

“I unlocked my cell phone.”

*sissy beating ensues*

gryphon202 on March 5, 2013 at 8:46 AM

It’s rare I can agree with the Obama regime on anything, but they’re right about this. But don’t just pay lip service to the stupidity of the law. Overturn it.

Doughboy on March 5, 2013 at 8:46 AM

Oh, sorry he has those calls forwarded to the SecDef.

my bad.

PappyD61 on March 5, 2013 at 8:46 AM

, the Library of Congress made unlocking a violation of a little-known provision of copyright law.

What the hell kind of country do we live in?

tom daschle concerned on March 5, 2013 at 8:47 AM

What the hell kind of country do we live in?

tom daschle concerned on March 5, 2013 at 8:47 AM

One ruled by librarians.

Apparently.

And not the “naughty” type either unfortunately…

Defenestratus on March 5, 2013 at 8:58 AM

WH beats the stupid party to the buzzer again.

Red Creek on March 5, 2013 at 9:01 AM

Obama administration has responded by recognizing how ridiculous the law was, and now says it will work to overturn it:

I’m sure they will pivot right to that, after the pivot to jobs is done pivoting to the economy.

Gatsu on March 5, 2013 at 9:02 AM

What the hell kind of country tyrannical state do we live in?

tom daschle concerned on March 5, 2013 at 8:47 AM

FIFM

ShainS on March 5, 2013 at 9:03 AM

Obama administration has responded by recognizing how ridiculous the law was, and now says it will work to overturn it

The first step of overturning it merely means not enforcing it. The Obama Administration has a great amount of experience in doing this.

unclesmrgol on March 5, 2013 at 9:06 AM

the new rule from the Library of Congress that criminalized…

Maybe I’ve been caught napping, but didn’t it used to require a law passed by the legislature to make something a crime? Now rules from a library can put me in prison?

forest on March 5, 2013 at 9:06 AM

Maybe I’ve been caught napping, but didn’t it used to require a law passed by the legislature to make something a crime? Now rules from a library can put me in prison?

forest on March 5, 2013 at 9:06 AM

Lots of laws specifically give cabinet-level authorities the power to implement them. Obamacare is one example, with all its citations of “…as the secretary may deem.” The Library of Congress is thusly tasked with enforcing copyright laws, which in practice means they get to write the regulations.

gryphon202 on March 5, 2013 at 9:12 AM

It sure didn’t take T-Mobile long. The ink hadn’t even dried on the new regs before they announced they were considering ditching the 2-year contract. And discontinuing the subsidy. All well and good, but now, because unlocking your own phone is a felony, they’ve got the best of all worlds. They’ve discontinued the subsidy and still locked you into their service. Who can afford to pay $600 for a phone and then leave for another carrier when it is a felony to take your $600 phone with you?

rogaineguy on March 5, 2013 at 9:22 AM

Who can afford to pay $600 for a phone and then leave for another carrier when it is a felony to take your $600 phone with you?

Simple solution is to buy an already unlocked Google Nexus 4. Then you can walk up to T-mo and get an unlimited data plan for like I think less than $50/mo

Defenestratus on March 5, 2013 at 9:29 AM

So I guess it might be safe now to remove my mattress tag…

hillsoftx on March 5, 2013 at 9:46 AM

This ought to be a no-brainer, but…well, you know the rest.

Bob's Kid on March 5, 2013 at 9:47 AM

WH beats the stupid party to the buzzer again.

Red Creek on March 5, 2013 at 9:01 AM

Yup. It’s absolutely shameful how stupid the GOP is, uh, most of the time. Firing Khanna was just beyond stupid.

Punchenko on March 5, 2013 at 9:56 AM

“It’s common sense, crucial for protecting consumer choice, and important for ensuring we continue to have the vibrant, competitive LIGHT BULB, HEALTH CARE, AUTOMOTBILE, ENERGY, EDUCATION, LABOR, AD INFINITUM market that delivers innovative products and solid service to meet consumers’ needs,”

So what else am I missing here guys??

mgman on March 5, 2013 at 10:07 AM

The White House has made the right decision in pushing for a repeal of this decision, and Republicans should have taken the lead on this long before this.

If Republicans had taken the lead on this, you can be sure the White House would have gone in the opposite direction.

sydneyjane on March 5, 2013 at 10:24 AM

Obama can want legislation until the cows come home. It’s up to the House Republicans and Senate Democrats to make it happen.

The sad thing, we all know it will be stuffed into some spending bill somewhere as a political ploy.

ButterflyDragon on March 5, 2013 at 10:39 AM

May I just comment that Derek Khanna is extremely attractive? I believe I join the ladies and other homocons in saying that we wouldn’t mind if more stories were posted on this – lol

ZachV on March 5, 2013 at 10:42 AM

Why didn’t Republicans get out in front on this issue? A big missed opportunity. Again.

Socratease on March 5, 2013 at 10:49 AM

It’s an interesting day when I find myself in agreement with Barky…

Archivarix on March 5, 2013 at 11:08 AM

Simple solution is to buy an already unlocked Google Nexus 4. Then you can walk up to T-mo and get an unlimited data plan for like I think less than $50/mo

Defenestratus on March 5, 2013 at 9:29 AM

T-Mobile is only good in some areas and I don’t think AT&T supports the N4.

Dr. Frank Enstine on March 5, 2013 at 11:15 AM

I am in the middle on this issue. I agree with the Obama administration in that the federal government — specifically, the Library of Congress — should not be involved in this issue at all. Certainly there should be no criminal penalties for unlocking cell phones.

OTOH, I am a supporter of the free market. Manufacturers and cell companies can sell you a product and service under whatever terms they wish, and government shouldn’t get involved in that either. If AT&T wants to sell you a $700 phone for $200 on the condition that it comes locked and you agree contractually not to unlock it, they should be able to do so and they should be able to pursue civil remedies for breach of contract if you do unlock it. If you don’t like it, you are free to deal with a different company. That’s the market at work.

So, bottom line. Free market. No artificial government criminalizing of what consumers do with a product. But also no government telling companies how to price, sell, and license their products.

Shump on March 5, 2013 at 11:21 AM

Perhaps the Library of Congress will now track all CM10 Nightly downloads and dispatch the SWAT teams to straighten those criminals out. Only in Amerika.

NOMOBO on March 5, 2013 at 11:33 AM

The obviously liberal idiot Library of Congress obviously is a candidate for some “sequestering”. Where do these people come from?

ultracon on March 5, 2013 at 11:46 AM

Nice to know the President and his administration will be hard at work passing a law that’s nearly impossible to enforce.

Next up, pass a damnable budget, already!

Sgt Steve on March 5, 2013 at 11:58 AM

Defenestratus on March 5, 2013 at 9:29 AM

I don’t know about the Nexus 4, but the standard Nexus doesn’t come unlocked. I still had to unlock it, and install a bootloader in order to install some Superuser programs to it.

Sgt Steve on March 5, 2013 at 12:02 PM

Yeah one of the few places (and the AT&T T-Mo merger) that I actually agree with the Barry administration.

Defenestratus on March 5, 2013 at 8:45 AM

The White House needs to stay in good graces with their internet lobby because those cool points could cost them money. Anyway, I agree the law was ridiculous.

However, what was wrong with the ATT/T-Mobile merger? The Feds should have stayed out of that, I was really excited for Verizon and Sprint to have some truly viable competition after the merger. Sprint’s well connected lobbyists prevented it from happening, T-Mobile and ATT on their own just don’t have the networks to compete. I would have kissed off Verizon as soon as the merger went through and am really sore it didn’t.

Daemonocracy on March 5, 2013 at 12:14 PM

Now if we could just get them to support being able to unlock other hardware that’s been locked up by the DMCA.

An example everyone’s probably familiar with is your home DVD player. Who hasn’t run into a case where you couldn’t skip previews or studio splashes so you can get right to the movie?

The movie studios have override command on your DVD player, and most people don’t even know it.

taznar on March 5, 2013 at 12:27 PM

Perhaps the Library of Congress will now track all CM10 Nightly downloads and dispatch the SWAT teams to straighten those criminals out. Only in Amerika.

NOMOBO on March 5, 2013 at 11:33 AM

Technically, that’s not considered unlocking your phone. That’s like putting Linux on your Windows laptop. (Which I’ve done.) I’ve used CM10 on my Captivate as opposed to stock AT&T Gingerbread. That’s why ROMs exist, to allow you to customize your phone.

Unlocking means making your phone work on any carrier, not just the one you bought it from.

Of course, putting a new ROM on your phone does void the warranty, so if it breaks, you’re stuck.

falcon on March 5, 2013 at 12:42 PM

As I understand it, the illegality of unlocking your cell phone comes from the DMCA and that aspect springs from the extension of copyright. In the Reason interview, it was pointed out that before you had to claim the copyright then it was made that you automatically had the copyright.

I think it was pre-DMCA (or something) you wrote a book, you had to claim the copyright to get it. After-DMCA, anything you created was automatically under copyright.

A number of exemptions were established at the discretion of the Librarian of Congress of which the non-criminality of unlocking you cell was one. That exemption was allowed to expire.

The expiration of the exemption appears, to me, to be an effort by cell phone companies to use the government and its powers of criminal enforcement to outsource something that they would have to do to enforce their “copyright” on any content they created that was on a cell phone which probably would be quite costly in comparison to what it may actually cost them in the revenue stream.

Russ808 on March 5, 2013 at 1:00 PM

The DMCA passed was passed by (let’s not get sloppy here. — generic HS English teacher) a Republican Congress in 1998 and was signed into law by Bill Clinton. At the time, freedom-of-information activists warned of the consequences of some of the bill’s language, but it has largely gone unnoticed in between until House Republicans first floated the Stop Online Piracy Act (SOPA) in 2011.

Rule 1 of government by regulation: never pay attention to warnings of dire consequences; I would say “unintended” but that is only true in a some instances.

Not that you can’t have both in the same law.

AesopFan on March 5, 2013 at 3:02 PM

five years in jail and a $500,000 fine.

Well, we wouldn’t want anyone to think we don’t take copyright law seriously….

Of course, the problem is that this really had nothing to do with copyright law in the first place. The DMCA was a bad law, but it passed a Republican House and was signed by a Democratic president, because if there’s one thing both parties can get behind, it’s catering to powerful lobbies.

tom on March 5, 2013 at 3:07 PM

Why didn’t Republicans get out in front on this issue? A big missed opportunity. Again.

Socratease on March 5, 2013 at 10:49 AM

They didn’t earn the title The Party of Stupid in a raffle. They came by it honestly. That’s been a big part of their problem. Instapundit was urging them to take this on months ago, but…sigh.

CitizenEgg on March 5, 2013 at 7:10 PM