The US House of Representatives recently passed a bill that allows unlocking of mobile devices, which means consumers will be able to remove the network-lock on their devices without fear of legal repercussions. H.R. 1123 is now on its way to the Senate for possible signing off or revisions. Once finalized as a law, this will mean that individuals will not be liable for violating the Digital Millenium Copyright Act (DMCA) when we unlock our mobile devices.
This bill has some limitations, however. While it will now be legal for individuals to unlock their devices, businesses that deal with bulk unlocking are still not off the hook. This means developers who build tools for unlocking devices might still be liable for copyright breach under the DMCA. Likewise, businesses that do bulk unlocking for the purpose of reselling phones (locally or abroad) may be liable.
There are several reasons why networks implement a lock on devices, and one of these is the subsidy they pay for each device sold, which is recouped through the contract, usually under a two-year term. However, from a consumer’s point of view, unlocking is necessary as a means to have more control over their device and over their consumption. For example, when traveling abroad, roaming fees can be hefty. Users can save money by using local, prepaid SIM cards.
Additionally, with the fast product lifetimes and cycles, smartphones are usually obsolete in six months to one year, which means consumers on the bleeding edge would want to upgrade their devices and possibly sell in the aftermarket or give away their older phone to a family member or friend.
Now, the fact that congress is giving individuals the freedom to have our devices unlocked is a good thing. However, adding clauses that prevent mass unlocking is tantamount to banning companies and developers that build tools that unlock devices for a fee. It essentially stifles a business model that may otherwise be legitimate and actually helpful. This means that a user might be limited in his options for unlocking.
True enough, mobile enthusiasts and hackers would be familiar with ways how to unlock a smartphone or any mobile device. A cursory visit to the XDA Developers forum, for example, would yield quite a number of posts and discussions dealing with rooting and SIM unlocking. However, not all users are bold enough to use unlocking tools on their own. Most would have to rely on unlocking services that provide unlock codes, or which unlock devices on-site. Making third-party unlocking tools illegal might discourage developers from building these apps, software and services. Where will consumers turn to, then?
Additionally, the clause preventing unlocking for the purpose of resale might be read to refer to this scenario, as well. If you have upgraded to a new device and want to sell your old, network-locked smartphone, you might be liable for DMCA violation if you unlock and then sell the device.
Go ahead, unlock your phone!
Does it matter, though? Has anyone been successfully prosecuted for unlocking one’s mobile device or building tools? In 2013, I was able to interview Sina Khanifar, who ran the successful White House We the People petition to make phone unlocking legal, which garnered 114,322 signatures, prompting the administration to express support for unlocking. Khanifar shared his story of how Motorola sent him a Cease and Desist letter for distributing software that unlocked the company’s devices. “I think the fair use doctrine should apply — once you’ve bought something, you should be free to do as you want with it,” he shared.
Fortunately, Motorola decided that it was not viable to pursue a case against a college student (Khanifar was, back then, attending university in the UK). So far, there have been no landmark cases involving carriers or mobile manufacturers suing individuals or companies for mobile unlocking. This does not mean that these companies do not care — perhaps, they don’t feel it is worth the time and effort to prosecute, given the small-scale nature of unlocking, and the consumer advocacy that comes with being able to modify your own device.
In short, it might still be a grey area, especially when it comes to individuals doing something they feel they are entitled to (which is tinkering with their own device).
To summarize, I believe that legalizing mobile unlocking is important because of these considerations:
- Carriers are moving toward “uncarrier” arrangements, where the subsidy model is no longer in place.
- It’s no longer the 1990’s, and new smartphones are being launched every few months or so.
- Manufacturers are already launching great but inexpensive devices that ship unlocked.
- Global roaming can be expensive.
- Consumer welfare
Have you ever unlocked a mobile device before? Did you feel you violated any law or ruling? Or did you feel that it should be your right as a consumer to do so?