Obama’s Secret Attempt to Ban Cellphone Unlocking, While Claiming to Support It

Future Tense
The Citizen's Guide to the Future
Nov. 18 2013 2:51 PM

Obama’s Secret Attempt to Ban Cellphone Unlocking, While Claiming to Support It

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Barack Obama holsters his smartphone in 2009

Photo by SAUL LOEB/AFP/Getty Images

Last week, WikiLeaks made public a portion of a treaty that the White House has been secretly negotiating with other nations and 600 special interest lobbyists. The draft of the Trans-Pacific Partnership Treaty, which is on intellectual property, shows that HealthCare.gov isn’t the only tech topic on which the Obama administration has some serious explaining to do.

The White House claims that it supports copyright reform. It should be in favor of remaking the framework, because today’s copyright system is a mess: It grants protection that is too long (70 years or more), fair use is notoriously unclear and vague, and statutory damage laws create a massive deterrent to lawful creation. Economists and scholars argue that modern copyright, as opposed to constitutional copyright, greatly impedes innovation and content creation. But the TPP, which is being negotiated by 11 countries, would be a step in the completely wrong direction.

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In its present state, treaty would expand copyright and effectively make real reform impossible. Worse, it would essentially disregard constitutional limitations on copyright and reject pillars like fair use, the first-sale doctrine, and having copyright be for “limited times.” The worst part: While the White House was publicly proclaiming its support of cellphone unlocking, it was secretly negotiating a treaty that would ban it.

Cellphone unlocking is the ability to take a phone and alter its settings so that it can be used on other carriers. Essentially this technology allows a consumer to bring her phone from one carrier to another when her contract expires (if technologies are compatible). In January, following appeals by AT&T/Verizon’s main trade association, the Librarian of Congress issued a ruling making unlocking a felony punishable by five years in prison and a $500,000 fine. This was a terrible idea: Economists and market participants have explained that this ruling would result in reduced competition in the industry, a decimated resale market, and restricted consumer rights. And indeed the impact has been devastating.

At the time, Sina Khanifar and I spearheaded an unpaid national campaign to legalize unlocking, which included a White House “We the People” petition (I wrote a bit about our campaign here).* Our petition reached 114,000 signatures, and the White House responded in favor of cellphone unlocking:

“The White House agrees with the 114,000+ of you who believe that consumers should be able to unlock their cell phones. ... 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.”

The FCC came out in favor of our petition, as did numerous outside groups such as Freedomworks, Public Knowledge, R Street and the editorial boards of the New York Times and the Washington Examiner. We were unable to find a single group, or Member of Congress, that was in favor of unlocking being a felony.  But somehow, while a number of bills were introduced, none passed, and the one that had widespread support, H.R. 1892, never received a hearing or was brought up for a vote.

The leaked treaty draft shows that while the White House was championing restoring free market principles to phones, the U.S. proposed that the TPP lock in the process that allowed the Librarian of Congress to rule this technology as illegal through international law. This would make potential reforms like H.R. 1892 impossible.* It should be noted that Canada did submit an amendment proposal that could allow unlocking, but neither the United States nor any other country supported it.

But the TPP draft doesn’t stop there. It would ban numerous other technologies that have beneficial uses.

In particular, the legislation would ensure that jailbreaking—which is installing a different operating system, or altering the existing operating system, on your phone, tablet, or e-reader—would also be illegal without permission from the Librarian of Congress (making a permanent fix impossible,). What type of nation would arrest 23 million people for installing a different operating system, or altering an existing one, on their own device?*

This treaty is still being negotiated, so all of these issues could be addressed in the final text, but so far what has been made public demonstrates a massive and nearly unprecedented power grab by special interests rather than sound public policy considerations.

This treaty has long been shrouded in unprecedented secrecy. Congressional staff, press and general public weren’t allowed to read it; in many cases, even members of Congress were kept in the dark. Meanwhile, special interests were given full access. Now we know why: The White House didn’t want the public to know what was being negotiated in their name.

*Correction, Nov 18, 2013: This blog post originally misstated effect of the U.S. proposal to TPP. Several legal scholars originally believed that draft treaty would ban unlocking and jailbreaking in all circumstances. After a thorough review of the text, it was found to allow for the Librarian of Congress (or similar process) to grant "temporary" exception for jailbreaking/unlocking. In January 2013, the Librarian decided to not grant an exception for jail-breaking a tablet or unlocking a phone. Previously introduced legislation, H.R. 1892, would make these technologies as permanently lawful—which is why H.R. 1892 would not be consistent with the TPP as drafted. Under TPP, adjusting these laws to allow for unlocking and jailbreaking to be permanent would be impossible.

*Correction, Nov. 19, 2013: This blog post failed to mention that Sina Khanifar co-ran the cellphone unlocking campaign. It also suggested that jailbreaking refers only to installing a different operating system. It also means altering an existing operating system.

Future Tense is a partnership of SlateNew America, and Arizona State University.

Derek Khanna (@Derekkhanna) is a visiting fellow with Yale Law’s Information Society Project. He was a previous Hill staffer for the House Republican Study Committee and spearheaded the national campaign on cellphone unlocking.

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