Petition seeks White House's support in changing the "unlock ban"

By Nathaniel Mott , written on January 29, 2013

From The News Desk

The Web loves a good petition. People are happy to stamp their names for a variety of causes, whether it's petitioning Tumblr to revert its post system to a previous version or asking the White House to consider building a Death Star. A new petition is going for a larger, slightly more pressing issue: the "unlock ban" that prevents people who purchased a device after January 26 to tinker with their phones and allow them to operate on other networks.

More than 33,000 people have given approval to this petition, which, if it amasses more than 100,000 "signatures," will plead the White House to "ask the Librarian of Congress to rescind this decision, and failing that, champion a bill that makes unlocking permanently legal."

Unlocking a device offers several advantages, not the least of which being freedom from a carrier's clutches after a contract has already expired. The practice is common for people who purchase the iPhone on AT&T, for example, and decide that they would rather use T-Mobile. Normally they would be unable to do so -- not because of some network issue, which would be the case if someone were switching from Verizon to AT&T, but because AT&T has "locked" the phone to its network.

To better explain this we'll turn to the most American of metaphors: the automobile.

It's hard to find a new car. Some models offer more features than others, some come with excellent financing, and some let the entire world know that yes, you do belong to the 1 percent. But, no matter how hard it is to choose what you'd like to drive, it's not like you have to make a commitment to drive the first 100,000 miles in that car on just one network of roads.

Carriers, on the other hand, are able to make rules like that and enforce them with costly two-year contracts. Actually, they're able to go a step further, "locking" phones onto their networks even if the device is technically capable of operating on a competitor's. Now these carriers will be able to maintain control of the device even after a customer's contract expires, thanks to the Digital Millennium Copyright Act and good old-fashioned fear mongering.

Most people are unlikely to face legal action if they unlock their phones. The change only applies to people who purchased a phone after January 26, and will likely only be used to target businesses or individuals who unlock many phones. Some, like the CTIA, argue that this move will be a good thing that protects people from having their phones stolen. If a thief can't legally unlock a device, well, surely they won't do so! (If I could find a way to make that sentence drip with further condescension, I would.)

Here's what the Electronic Frontier Foundation wrote about the change:

Unlocking is in a legal grey area under the DMCA. The law was supposed to protect creative works, but it's often been misused by electronics makers to block competition and kill markets for used goods. The courts have pushed back, ruling that the DMCA doesn't protect digital locks that keep digital devices from talking to each other when creative work isn't involved. And no creative work is involved here: Wireless carriers aren't worried about "piracy" of the software on their phones, they're worried about people reselling subsidized phones at a profit. So if the matter ever reached a court, it might well decide that the DMCA does not forbid unlocking a phone.

 Now, the bad news. While we don’t expect mass lawsuits anytime soon, the threat still looms. More likely, wireless carriers, or even federal prosecutors, will be emboldened to sue not individuals, but rather businesses that unlock and resell phones. If a court rules in favor of the carriers, penalties can be stiff - up to $2,500 per unlocked phone in a civil suit, and $500,000 or five years in prison in a criminal case where the unlocking is done for "commercial advantage." And this could happen even for phones that are no longer under contract. So we're really not free to do as we want with devices that we own. The fear is that someone will face the wrath of the law (and the carriers) to serve as an example of what could happen if you unlock a device. This fear is especially poignant following the death of Aaron Swartz, who is believed to have committed suicide following a harsh, dogged prosecution by the federal government. The Web has held a perpetual eulogy for Swartz and his legacy over the last few weeks, and fear that someone else may face overly-harsh legal actions just to serve as an example is very real.

Like other issues affecting the ability to modify, tinker, or even access devices and networks, it's hard to conceptualize just how big a deal these changes could be. They may, as the CTIA argues, be a good thing that helps consumers and businesses. They might, as the EFF says, blow over most people's heads, affecting a very small number of people -- or no one at all.

But they could just end up sending one person to years in prison, with outrageously high fines and the scars of being paraded around as an example of what might happen to someone with the audacity of using their personal property in a way that the seller didn't intend. That's what these 30,000 signatures are about: Changing or rescinding a law that could change someone's life for the worse.