By Ermal Hajrizi
On Saturday, the Library of Congress ruled that unlocking your phone is illegal under the terms stated on the DMCA. With users crying foul, many media outlets across the web seem to be reporting contradictory and incomplete information. We’re going to get to the bottom of this and try to decipher the new ruling.
To start, it’s important to note that this is not a new law, rather, it is a new interpretation of an old law. The Digital Millennium Copyright Act signed into law in 1998 was intended to solve the crippled copyright system in the U.S., but in reality, has created a plethora of restrictions on digital and creative freedom. The heavily-criticized law undergoes a review every three years to determine new interpretations, and this new understanding is a part of that process.
Contrary to popular belief, this new explanation doesn’t limit consumers any more than they currently are. The law applies most directly to phones under contract with a wireless carrier. When a phone is purchased in the U.S. on-contract from a carrier, the phone isn’t actually yours until the length of the contract passes, which is normally two years. In essence, phones are leased to consumers for a lower, subsidized price point. For you, this means that you don’t own the phone, and are thus subject to specifications agreed upon in the contract. One of these is not unlocking your phone to use on another carrier. Nonetheless, after you’ve paid all dues and obligations of the contract, you’re free to do as you please with your phone, including unlocking it.
The main reason for unlocking a phone is the subsequent ability to use the phone on any desired carrier. The wireless service provider that sold you the phone doesn’t want this because they sold you a cheaper phone with the belief that it will only operate on their network. The problem with the government’s new interpretation is that regulation on this behavior already exists on a private, contractual level between company and consumer. The contract you sign already provides ample punishment, including a fee calculated based on the value of the phone, for voided agreements.
The law from the government, however, includes far more severe punishment: up to $500,000 in fines and 5 years in prison, all for unlocking your phone. It’s unlikely that the courts would ever make an example of someone for this minor offense, but the mere fact that the avenue exists should raise a red flag in regard to an ever-more-powerful federal government.
The new interpretation of the DMCA applies only to new purchases. Under ex post facto laws, unlocked devices prior to Saturday are not subject to the ruling. In addition, any phone purchased off-contract, such as an unlocked iPhone, is not punishable under this law. Essentially, only contractually-bound phones “qualify” under this ruling.
Also, service providers may still unlock phones when asked under their own discretion. However, your mileage may vary with how willing companies are in this regard.
One thing of note – a point confused by many sources across the web – is that jailbreaking your device is not illegal. Unlocking and jailbreaking are two, often-confused terms that are intrinsically very different. This law applies only to the former.
This message of control sent by the Library of Congress serves only to reinforce the notion that the DMCA is a wide-reaching piece of legislation with dangerous consequences to the digital freedoms of consumers around the country. A review of current policies is desperately needed to fix a crippled system that leads only to bloated, impenetrable roads to innovation.