Senate To Finally Consider Bill To Make Cellphone Unlocking Legal Again



Four months after the House of Representatives passed a bill that would override the Librarian of Congress’s industry-backed decision to make it illegal for consumers to unlock cellphones and take them to other carriers, members of the U.S. Senate will finally get around to considering a similar piece of legislation, giving some hope that the bill might pass in our lifetime.

A quick recap for those who haven’t been paying attention. For years, it was completely legal for a consumer to unlock her phone, provided that she owned the device outright. Then in 2012, the Librarian of Congress, who has the sole authority to interpret (and reinterpret) the Digital Millennium Copyright Act, ignored precedent and common sense, choosing instead to listen to the wireless industry, which argued that consumers never really own their phones because the software that operates them is not purchased by the user but licensed.

And so, in Jan. 2013, it became illegal for a consumer to unlock his phone without permission from his current wireless carrier. This led to an immediate backlash from consumers, consumer advocates, the FCC, members of Congress and the White House, which subsequently nudged the Commerce Dept. to nudge the FCC to get the wireless industry to voluntarily enact its own unlocking standards.

Shortly before the end of 2013, the wireless folks did just that, announcing a set of standards that would — hopefully — make it easier for consumers to unlock their devices without having to jump through too many hoops.

But those standards still put consumers in the position of being beholden to the wireless companies’ whims and timelines, as can be seen with Sprint’s tortoise-like pace for unlocking devices.

S.157 [PDF], the “Unlocking Consumer Choice and Wireless Competition Act,” was introduced in March by Sen. Patrick Leahy of Vermont and Sen. Chuck Grassley from Iowa, it repeals the Librarian of Congress’s ruling on the DMCA and replace it with the language that was there before change was made.

The bill will finally be discussed by the Senate Judiciary Committee at its meeting on Thursday. Given that Leahy is the Chair of that Committee and Grassley is the Ranking Member, we’re guessing the bill will squeak through committee and eventually be considered by the entire Senate.

“Consumers should be able to use their existing cellphones when they move their service to a new wireless provider,” said Leahy in a statement. “Our laws should not prohibit consumers from carrying their cellphones to a new network, and we should promote and protect competition in the wireless marketplace.”

“Empowering people with the freedom to use the carrier of their choice after complying with their original terms of service is the right thing to do,” added Grassley. “This bipartisan agreement is an important step forward in ensuring that there is competition in the industry and in safeguarding options for consumers as they look at new cellphone contracts.”

Our colleagues at Consumers Union agree.

“Restoring this right will save consumers money, give them greater choice, and help spur increased competition in both mobile phones and wireless service,” explained George Slover, senior policy counsel for Consumers Union. “Consumers should not be denied the right to extend the useful life of their mobile devices. Perfectly good mobile devices should not be arbitrarily consigned to gather dust in a drawer or rust in a landfill. When you buy a cellphone, you should be able to carry it over to another network.”

Note: An earlier version of this story referred to the Senate and House versions of the unlocking bill as identical. This was a mistake. As originally drafted, the two bills were indeed identical, but the version eventually approved by the House contained language — not found in the Senate version — that seemed to limit the unlocking of phones to individuals and left open the door to DMCA restrictions on bulk unlocking.

A number of advocacy groups voiced concern about this language, as it would, in the words of the Electronic Frontier Foundation, use “copyright as an excuse to inhibit certain business models, even if the business isn’t actually infringing anyone’s copyright.”

At the same time, Public Knowledge withdrew its support of the House bill, explaining that “A bill designed to scale back overreaching copyright laws should not also endorse an overreach of copyright law.”

The version of the bill that the Senate Judiciary Committee will review this week does not contain any of the language regarding bulk unlocking.

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