The White House has just issued its official response to a petition calling for President Barack Obama to legalize the practice of unlocking cellular phones in the United States. In short, the administration agrees wholeheartedly. "The White House agrees with the 114,000+ of you who believe that consumers should be able to unlock their cell phones without risking criminal or other penalties," reads the response, written by R. David Edelman. "In fact, we believe the same principle should also apply to tablets, which are increasingly similar to smart phones." The White House also suggests customers should be given the right to unlock a device once they've met their contractual obligations with carriers. "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."
"All consumers deserve that flexibility."
As for what happens now, the administration makes clear that it's open to a range of solutions, saying "neither criminal law nor technological locks should prevent consumers from switching carriers when they are no longer bound by a service agreement or other obligation." It's calling on the FCC to take a closer look at the situation along with the NTIA (National Telecommunications and Information Administration). Coinciding with the White House reply, FCC chairman Julius Genachowski today released his own statement insisting that a ban on unlocking "doesn't pass the common sense test." Genachowski confirms that the commission is currently examining the issue. The chairman's full statement:
The Copyright Office of the Library of Congress recently reversed its longstanding position and stated it is a violation of the Digital Millennium Copyright Act for consumers to unlock new mobile phones, even those outside of contract periods, without their wireless providers’ permission, and that consumers are subject to criminal penalties if they do.
From a communications policy perspective, this raises serious competition and innovation concerns, and for wireless consumers, it doesn't pass the common sense test. The FCC is examining this issue, looking into whether the agency, wireless providers, or others should take action to preserve consumers' ability to unlock their mobile phones. I also encourage Congress to take a close look and consider a legislative solution.
Finally, the White House is urging US wireless providers to review their current policies "to ensure that their customers can fully reap the benefits and features they expect when purchasing their devices."
"The DMCA exception process is a rigid and imperfect fit for this telecommunications issue."
The formal response follows last October's controversial decision by the US Library of Congress to remove unlocking from its list of valid exceptions to the Digital Millenium Copyright Act, making the act illegal without consent from wireless carriers. The move spurred outrage among mobile users, with the petition — started by Sina Khanifar — drawing 114,322 signatures. Khanifar has provided The Verge with his initial thoughts on the White House response:
A little earlier I received a call from David Edelman at the White House, and he gave me the news. I'm really glad to see the White House taking action on an issue that's clearly very important to people. As the White House said in the response, keeping unlocking legal is really "common sense," and I'm excited to see them recognizing this. David was enthusiastic about getting this fixed as quickly as possible.
This is a big victory for consumers, and I'm glad to have played a part in it. A lot of people reacted skeptically when I originally started the petition, with lots of comments to the effect of "petitions don't do anything." The optimist in me is really glad to have proved them wrong. The White House just showed that they really do listen, and that they're willing to take action.
While I think this is wonderful, I think the real culprit here is Section 1201 of the DMCA, the controversial "anti-circumvention provision." I discussed with the White House the potential of pushing to have that provision amended or removed, and they want to continue that conversation. I'll have exciting news on the campaign to make this happen tomorrow.
Update: The Library of Congress issued the following statement in response to today's events, acknowledging that the issue of locked cellphones "would benefit from review" while standing by its earlier rulemaking decision:
In a statement today, the Obama administration announced its view that, as a matter of telecommunications policy, consumers should be able to unlock their legally purchased cell phones for purposes of switching from one wireless carrier to another.
Both the Librarian of Congress and the Register of Copyrights value our colleagues in the administration and the thoughtful discussions we have had with them on this issue. We also agree with the administration that the question of locked cell phones has implications for telecommunications policy and that it would benefit from review and resolution in that context.
The question of locked cell phones was raised by participants in the Section 1201 rulemaking conducted between September 2011 and October 2012 by the Register of Copyrights, who in turn advises the Librarian of Congress. The rulemaking is a process spelled out by the Digital Millennium Copyright Act in which members of the public can request exemptions from the law to enable circumvention of technological protection measures. In the case of cell phones, the request was to allow circumvention of technological protection measures controlling access to copyrighted software on cell phones.
The rulemaking is a technical, legal proceeding and involves a lengthy public process. It requires the Librarian of Congress and the Register of Copyrights to consider exemptions to the prohibitions on circumvention, based on a factual record developed by the proponents and other interested parties. The officials must consider whether the evidence establishes a need for the exemption based on several statutory factors. It does not permit the U.S. Copyright Office to create permanent exemptions to the law.
As designed by Congress, the rulemaking serves a very important function, but it was not intended to be a substitute for deliberations of broader public policy.
However, as the U.S. Copyright Office has recognized many times, the 1201 rulemaking can often serve as a barometer for broader policy concerns and broader policy action. The most recent rulemaking has served this purpose.