White House Agrees That Cellphone Unlocking Should Be Legal Again

In January, a decision by the Librarian of Congress made it illegal for cellphone owners to unlock new devices without the permission of their current wireless carrier. This decision sparked public outrage, including a petition on the White House website calling for the administration to give this right back to consumers. The White House has since responded to say it concurs that this decision is a little messed up.

“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,” writes R. David Edelman, Senior Advisor for Internet, Innovation, & Privacy. “[I]f you have paid for your mobile device, and aren’t bound by a service agreement or other obligation, you should be able to use it on another network. 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.”

As previously reported, this rule change regarding cellphones didn’t come from Congress or the Federal Communications Commission, but from the Librarian of Congress, who has the authority to interpret — and reinterpret — the meaning and intention of the Digital Millennium Copyright Act.

Edelman writes that the administration “would support a range of approaches to addressing this issue, including narrow legislative fixes in the telecommunications space that make it clear: 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.”

The White House response also points to a statement from FCC Chairman Julius Genachowski released this morning, in which he writes that the rule change “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.”

In its response to the White House’s concerns, the Library of Congress writes:

“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 LOC defends the process, which in this case disregarded consumer advocates’ concerns in favor of data provided by the wireless industry that claimed to demonstrate how easy it is to have a carrier unlock one’s phone and how affordable unlocked phones are.

“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,” writes the LOC. “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.”