House Dem: Cellphone unlocking should never be a crime

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House Judiciary Chairman Bob Goodlatte (R-Va.) has introduced legislation that would give consumers the right to keep using their cellphones after a contract ends. The bill would overturn a Library of Congress decision that made it illegal to unlock phones purchased after Jan. 26.

While Goodlatte’s bill would allow consumers and carriers to unlock phones, using a third-party application or a cellphone unlocking service would remain illegal.

The wireless industry says the limitation is needed to prevent cellphones from being unlocked on a “bulk” basis for trafficking to foreign markets, but Lofgren said the criminal penalties — which can include jail time and fines up to $5,000 — should be abolished entirely.

“It’s not our job to say how the market works. Once someone buys something, they should own it. Once someone signs a contract, you can sue them, you can charge them a fee. I don’t think using criminal law to enforce the contract is appropriate,” Lofgren (D-Calif.) said Thursday at a hearing of the House Judiciary Committee.
 
Michael Altschul of CTIA, a trade group that represents all the major cellphone carriers, said no one should think of Goodlatte’s bill as legalizing a “universal phone” that can be unlocked and moved from one carrier to another. He said maintaining carrier consent is critical for stopping thieves.

“Making it illegal to unlock devices without carrier consent adds another barrier to these fencing operations and may help dry up the demand for stolen phones,” Altschul said.

Loftgren has introduced a rival bill to Goodlatte’s that would allow consumers to unlock their phones, tablets and mobile devices without facing criminal penalties or fines. H.R. 1892, “The Unlocking Technology Act of 2013,” would modify parts of the Digital Millennium Copyright Act that ban “circumvention” of copyrighted works — which includes unlocking a cellphone.

"This bill reflects the way we use this technology in our everyday lives," Lofgren said in a statement. "Americans should not be subject to fines and criminal liability for merely unlocking devices and media they legally purchased. If consumers are not violating copyright or some other law, there's little reason to hold back the benefits of unlocking so people can continue using their devices."

Lofgren’s bill would permanently allow consumers to unlock their phones, as well as legalize third-party applications or tools that enable unlocking.

The move in Congress to address cellphone unlocking was spurred by a petition on whitehouse.gov that garnered more than 114,000 signatures. In response, the White House backed legalizing the practice and urged Congress to take action.

Advocacy groups such as Consumer Union and Public Knowledge have called Goodlatte’s bill a “temporary fix” and are pushing for Lofgren’s alternative.

“It’s a more comprehensive fix that addresses all the concerns we have. It allows devices and software to be circumvented for normal consumer senses,” said Chris Lewis, Vice President of Public Affairs at Public Knowledge.

Unless more permanent measures are implemented, the groups fear the Copyright Office will be able to overturn the cellphone decision at a later date.

That said, the groups said they support passage of Goodlatte’s bill, even if it turns out to only be a temporary solution.

“A temporary piecemeal solution can sometimes be an effective stopgap measure for the time it takes to develop a well-considered comprehensive, permanent solution — as long as the two efforts go hand in hand,” said George P. Slover of the Consumer Union during his testimony.