Will It Soon be Legal to Unlock Your Cell Phone?

So what, exactly, is the Obama administration's position on whether consumers should be allowed to unlock their cell phones?

To no one's surprise, the issue did not merit a mention in last week's State of the Union address, but the administration will soon have to offer an opinion, in keeping with its own protocols for responding to online petitions submitted through the " We the people" section of the White House Website.

This week, the petition seeking to legitimize unlocking cell phones so that they can be used with multiple carriers crossed the threshold of 100,000 signatures required to elicit an official administration response.

The petition was started by Sina Khanifer, who as a college student studying abroad unlocked his cell phone so that it would work with a carrier operating in Great Britain. After his first year of school ended in 2004, Khanifer joined with a programmer and developed an application to enable consumers to easily unlock their own devices.

That application became the basis for a business venture, Cell-Unlock.com, which eventually caught the eye of Motorola, whose attorneys sent Khanifer a letter in September 2005 warning that his phone-unlocking operation was in violation of the Digital Millennium Copyright Act (DMCA).

Whether the DMCA should extend to users' ability to unlock their cell phones has been a subject of considerable debate among the wireless industry and consumer advocates. In October 2012, the librarian of Congress, which has authority to grant exemptions to certain DMCA provisions, determined that it is indeed unlawful to unlock phones purchased after Jan. 26 of this year, a decision that prompted Khanifer to petition the White House to repudiate the restriction.

"We ask that the White House ask the Librarian of Congress to rescind this decision, and failing that, champion a bill that makes unlocking permanently legal," the petition reads.

"Given that the decision was made by the librarian of Congress, who isn't directly beholden to votes, I think it's important that the White House take action to protect consumers," Khanifer told CIO.com in an email. "The DMCA's anti-circumvention section is poorly written, and there are a lot of groups who agree that it should be changed if not rescinded. Pressure from the White House could well make the difference."

CTIA, the principal trade group representing the wireless industry, has argued that locked phones are a foundational element of carriers' business model. Further, the association contends that its members, notably the four nationwide carriers, have been relaxing their policies on unlocking phones, and will free a device to operate on other networks at users' request in certain situations, such as a trip overseas.

"The librarian of Congress concluded that an exemption was not necessary because the largest nationwide carriers have liberal, publicly available unlocking policies, and because unlocked phones are freely available in the marketplace -- many at low prices," Michael Altschul, a senior vice president and legal counsel for CTIA, said in an emailed statement.

"Customers have numerous options when purchasing mobile devices," he adds. "They may choose to purchase devices at full price with no lock, or at a substantially discounted price -- typically hundreds of dollars less than the full price -- by signing a contract with a carrier. When the contract terms are satisfied, or for a reason that is included in the carrier's unlocking policy -- such as a trip outside the U.S. -- carriers will unlock a phone at their customer's request."

In its ruling, the Copyright Office of the Library of Congress affirmed the industry's contention that consumers have ample access to unlocked devices.

"While it is true that not every wireless device is available unlocked, and wireless carriers' unlocking polices are not free from all restrictions, the record clearly demonstrates that there is a wide range of alternatives from which consumers may choose in order to obtain an unlocked wireless phone," the Copyright Office wrote in its ruling.

Under the DMCA, first-time offenders who unlock a phone face a penalty of a fine of $500,000 and up to five years in jail.

Khanifer and other opponents of the unlocking restrictions contend that carriers already protect the subsidies that they offer for new phones in the form of early termination fees that penalize subscribers from ending their contracts before the term expires. And in the success of the petition, he sees broad support for the ability to unlock any and all handsets.

"I think reaching 100,000 signatures shows that people really do care about this issue, and want to be able to unlock their phones," Khanifer says.

The White House did not immediately respond to questions about the administration's position on unlocking phones or when an official response to the petition could be expected.

Kenneth Corbin is a Washington, D.C.-based writer who covers government and regulatory issues for CIO.com.

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