White House, FCC Chairman Support Legalizing Unlocking of Mobile Phones

The President Barack Obama administration said Monday that it made "common sense" for Americans to legally have the power to unlock their mobile phones, so they could use them on a compatible carrier of choice without fear of being sued or facing criminal penalties.

"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," White House aide R. David Eldelman wrote Monday in response to a whitehouse.gov petition demanding the administration enter the mobile-phone-unlocking fray.

A whitehouse.gov petition reached 100,000 signatures last month, forcing the administration to respond publicly about a recent decision by copyright regulators making it illegal to unlock mobile phones purchased after January 26. Unlocking enables a phone to operate on a compatible carrier of a consumer’s choosing.

"This is terrific news," Derek Khanna, one of the petition's main backers, said in a telephone interview.

The administration said it would support legislation to change course -- and also allow tablets to be unlocked legally -- and urged the Federal Communications Commission to intervene, too. Julius Genachowski, the FCC chairman, said the commission was, indeed, looking into the matter.

"From a communications policy perspective, this raises serious competition and innovation concerns, and for wireless consumers, it doesn't pass the common sense test," he said in a statement.

The U.S. Copyright Office ended the practice of granting an unlocking exemption to the Digital Millennium Copyright Act last year. The DMCA makes it illegal to "circumvent a technological measure that effectively controls access" to copyrighted material, in this case software embedded in phones that controls carrier access.

The carriers, however, last year told the Copyright Office, which every three years re-examines exemptions to the DMCA, that they did not oppose individuals unlocking their phones. Many carriers provide the service today to individuals, despite the decision.

Among the reasons the Copyright Office changed course in October was because many carriers and phone makers sold unlocked phones and would also unlock them for their customers. Unlocking was denied for the first time for tablets, too, because an "ebook reading device might be considered a tablet, as might a handheld video game device."

Before unlocking mobile phones was first exempted in 2006 and again in 2010, the carriers never sued individuals for unlocking their own phones. When unlocking was exempted and allowed, the carriers and phone makers were busy successfully suing illicit businesses that bought throw-away phones by the thousands, unlocked them, and shipped them overseas.

But under the changeover, there's nothing preventing the carriers from suing individuals and abandoning the practice of unlocking mobile phones for their customers.

Here is the White House's full response Monday:

Thank you for sharing your views on cell phone unlocking with us through your petition on our We the People platform. Last week the White House brought together experts from across government who work on telecommunications, technology, and copyright policy, and we're pleased to offer our response.

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. In fact, we believe the same principle should also apply to tablets, which are increasingly similar to smart phones. And if 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.

This is particularly important for secondhand or other mobile devices that you might buy or receive as a gift, and want to activate on the wireless network that meets your needs -- even if it isn't the one on which the device was first activated. All consumers deserve that flexibility.

The White House's position detailed in this response builds on some critical thinking done by the President's chief advisory Agency on these matters: the Department of Commerce's National Telecommunications and Information Administration (NTIA). For more context and information on the technical aspects of the issue, you can review the NTIA's letter to the Library of Congress' Register of Copyrights (.pdf), voicing strong support for maintaining the previous exception to the Digital Millennium Copyright Act (DMCA) for cell phone carrier unlocking.

Contrary to the NTIA's recommendation, the Librarian of Congress ruled that phones purchased after January of this year would no longer be exempted from the DMCA. The law gives the Librarian the authority to establish or eliminate exceptions -- and we respect that process. But it is also worth noting the statement the Library of Congress released today on the broader public policy concerns of the issue. Clearly the White House and Library of Congress agree that the DMCA exception process is a rigid and imperfect fit for this telecommunications issue, and we want to ensure this particular challenge for mobile competition is solved.

So where do we go from here?

The Obama 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.

We also believe the Federal Communications Commission (FCC), with its responsibility for promoting mobile competition and innovation, has an important role to play here. FCC Chairman Genachowski today voiced his concern about mobile phone unlocking (.pdf), and to complement his efforts, NTIA will be formally engaging with the FCC as it addresses this urgent issue.

Finally, we would encourage mobile providers to consider what steps they as businesses can take to ensure that their customers can fully reap the benefits and features they expect when purchasing their devices.

We look forward to continuing to work with Congress, the wireless and mobile phone industries, and most importantly you -- the everyday consumers who stand to benefit from this greater flexibility -- to ensure our laws keep pace with changing technology, protect the economic competitiveness that has led to such innovation in this space, and offer consumers the flexibility and freedoms they deserve.

R. David Edelman is Senior Advisor for Internet, Innovation, & Privacy