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Lock box

I have to confess, I'm fascinated by the news that unlocking a cell phone under contract without the permission of your carrier will become illegal in the US on Saturday; that is, tomorrow, January 26, 2013. Partly, I find the story astonishing because it's such a minute thing to have outlawed. But partly, because it shows how far out of step the US continues to be in the mobile phone world - and just how twisted some laws can get.

It isn't unreasonable for the companies that sell people mobile phones at subsidized prices to lock them into contracts whose ultimate purpose is to ensure that the subsidy is repaid over time. If you don't like that setup, there's a simple solution, assuming you can afford it: buy your own phone at full price. It ain't cheap, to be sure, to buy something new and fancy like a Samsung Galaxy Note 2. For that phone, the best price I could find before Christmas: £419, shipped direct, customs fees and delivery paid, from Hong Kong; it seems to be somewhat higher now. But buying the same phone, subsidized, from a carrier meant being required to sign up for a pricey monthly data plan instead of the inexpensive but more-than-adequate one I already had. If you did the math, buying the phone outright at the outset would pay for itself in less than the two years the contract would have been in force - in 17 months, to be precise. Maybe that makes sense if you change your phone every 18 months to two years, but much of the significant benefit to a new phone going forward will be in the software updates - and you can have those anyway.

But not necessarily in the US, where any European resident would conclude the consumer protection forces have failed utterly in the mobile market for some decades now. Even though the US has migrated to standards used in the rest of the world, it's still often not as easy as it should be to find a setup where you can stick your service's SIM card into any phone you happen to have handy - or insert any SIM card that makes roaming cheaper into the phone you have. It's amazing there hasn't been a class action suit about this. (Side note: that article seems to confuse unlocking the phone with jailbreaking it. They're not the same.)

If you've read the stories you, like me, might be wondering what on earth the Librarian of Congress - a job title that sounds like the owner ought to be utterly harmless - is doing banning unlocked cell phones. Shouldn't that be a job for the Federal Communications Commission or the Federal Trade Commission? People who deal with communications and consumer protection?

If the law at issue were contract law and the terms to which people agree when they buy their subsidized cell phones, that would be true. Instead, it turns out that the law being invoked is the Digital Millennium Copyright Act (1998), which bans "circumventing" technology designed to protect copyright. Back when the DMCA was being negotiated, folks like the Electronic Frontier Foundation (and many others) warned that it would have far-reaching effects. People talked about a legal ban on liquid paper (which you could use to white out a copyright notice), scissors (which you could use to cut one off), and (of course) crypto.

It's safe to say that no one, certainly not the framers of the law, saw it as a measure that would ultimately be used to protect the market control of a few large phone companies at the expense of millions of ordinary Americans. The EFF has been on the case all this time, however, and in the rulemaking process last November, asked the Librarian to an exemption for cell phones. The even weirder upshot of this whole thing is that the Librarian granted in 2009 and renewed in 2012 an exemption for *jailbreaking* phones (but not tablets or video game consoles on the basis that they're too hard to define). This week, EFF argued in a statement quoted by many media that locking phone users into a phone carrier is not at all what the DMCA was meant to do.

The Librarian's argument seems to be that it's not fair use to break the lock because you don't own the software - which has led commenters to AndroidAuthority to suggest taking a copy of the phone's built-in software and then flash the phone with unlocked custom software, a notion that might be within the spirit of the law but sounds like it violates the letter. On the other hand, it's a ridiculous law clearly against consumers' best interests.

It's easy for the rest of the world to laugh and say, oh, well, that's American cellular telephony for you. But the DMCA was followed by anti-circumvention laws in the EU and elsewhere. They're unlikely to be abused in the peculiar way that will take hold in the US this weekend. But there will always be people and companies looking for ways to twist the law to serve their particular purposes. A case like that provides a great demonstration of just why laws need to be drafted as narrowly and precisely as possible. And why there's so much danger in bad law that sticks.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.


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