What the DMCA cell phone unlock ban means to you (FAQ)

There has been a lot of talk lately about about how it's now considered illegal to unlock your smartphone without your carrier's permission.

The change comes as part of a three-year cycle for renewing the Digital Millennium Copyright Act (PDF). And in this cycle the Library of Congress, which has the job of approving exemptions to the law, decided not to exempt the software locks that carriers put on devices that prevent them from being used on other carrier networks.

The change has caused quite a stir in the wireless community since it took effect in January. An online petition was started, which has garnered some 114,322 signatures. And now President Obama's administration has chimed in offering support for a change.

To help readers better understand the intricacies of the legal arguments being made and to figure out it means for the average Joe, CNET has put together this FAQ.

I've heard all kinds of hub-bub lately about the ban on unauthorized cell phone unlocking. But I am confused, what exactly has changed?
The wireless industry claims that the Digital Millennium Copyright Act, which is supposed to prevent people from pirating digital content by making it illegal to disable digital rights management, or DRM, software, applies to the device locks that carriers put on cell phones to prevent those devices from being used on other carrier networks.

As part of the statute, the Library of Congress is tasked with reviewing the DMCA every three years. During this process, it spells out explicit exemptions. In previous review processes, the Librarian of Congress, who heads up the Library of Congress, exempted cell phone unlocking, which meant that the portion of the law that may have been interpreted to prevent cell phone users from unlocking their devices without permission from their wireless carriers was not a violation of the DMCA.

But this year when the law was up for review, the Librarian of Congress rejected petitions from the Electronic Freedom Foundation and other interested parties requesting exemption (PDF), noting that the exemption was no longer necessary since consumers now have a long list of devices they can buy that are unlocked, such as the Google Android Nexus 4 and some versions of the Apple iPhone.

The [Register of Copyrights] concluded after a review of the statutory factors that an exemption to the prohibition on circumvention of mobile phone computer programs to permit users to unlock "legacy" phones is both warranted and unlikely to harm the market for such programs. At the same time, in light of carriers' current unlocking policies and the ready availability of new unlocked phones in the marketplace, the record did not support an exemption for newly purchased phones.

So does this mean that it's illegal to unlock a smartphone?
The law does not preclude you from getting your smartphone unlocked. What it does potentially prevent is you being able to get your phone unlocked without your carrier's permission.

The way most people get their cell phones unlocked today is that they call their wireless provider and ask for an unlock code. If certain criteria are met, the carrier provides the unlock code. The consumer then enters the code and goes through the unlocking steps and voila the phone is unlocked.

That said, the wireless industry would argue that unlocking a phone without a carrier's permission is a violation of the DMCA. But the EFF and Public Knowledge, a consumer advocacy group, would argue it's not breaking the law, since they don't see these locks as DRM software, which is supposed to protect copyrighted digital content from piracy. In other words, the software lock is not being used to prevent others from stealing the OS software and using it on other devices. Instead it's meant to prevent the device from being used on another carrier's network, which consumer advocates argue is clearly trying to limit consumer choice and competition and not preventing piracy.

The only way to test whose interpretation of the law is correct is to test the law in court. But getting a lawsuit filed that will test this statute is not easy. And it's potentially a long and arduous process. This is why in the past, the EFF has asked for an exemption in the law. And until this year, it was granted that exemption.

Could a group of wireless subscribers get together and sue the carriers to test whether the law will hold up in the courts?
Unfortunately, this would be very difficult for several reasons including the fact that wireless subscribers are no longer allowed to sue their carriers as part of a class lawsuit.

The problem is the U.S. Supreme Court's 2011 decision in Concepcion v. AT&T Mobility, in which the Court upheld the validity of class action waivers and arbitration clauses in consumer contracts, according to Michael Ashenbrener of Aschenbrener Law, a consumer advocacy law firm based in Chicago.

"As a result of the Concepcion case, it is essentially impossible to sue a U.S. cell phone carrier in a class action," Aschenbrener explained in an e-mail. "Consequently, there is no effective check on the power of U.S. wireless companies."

Aschenbrenner speculates that had it not been for the Concepcion decision, consumers could potentially invoke a variety of laws against Apple and the U.S. wireless carriers, including antitrust law and other consumer protection laws. But as it stands, consumers are out of luck unless they wish to pursue individual small claims cases or arbitration.

Am I still able to jailbreak my smartphone?
Yes, the Librarian of Congress renewed the exemption that will allow consumers to jailbreak or root their devices so that they can add additional software and apps to those devices. But it would not renew the exemption for unlocking phones that would allow people to use their phone on another carrier's network.

What is President Obama's administration doing to resolve this issue?
On Monday, the White House publicly backed an Internet petition asking the Library of Congress to change its stance on the legality of smartphone unlocking. In a post on the "We The People" blog, R. David Edelman, the White House senior adviser for Internet, innovation and privacy, said the administration agrees with those who signed the petition, and aims to support any legislation that would remedy the issue. And he added that the same principles should also apply to tablets.

Edelman said that this was really an issue about competition and not necessarily one about copyright. As such, he said that it should handled by the Federal Communications Commission, instead of the Library of Congress and the Copyright Office.

"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," he said.

Will the White House's involvement change things?
Probably not directly. The president doesn't have the authority to tell the librarian of Congress to change the exemption, since even though he is appointed by the president, the Library of Congress is essentially under the authority of the legislative branch. President Obama also can't do anything to change the law that supposedly makes unlocking your phone illegal. Only Congress can change the DMCA. But the fact that the president's administration has weighed in and is now supporting the petition, which already has some 114,000 signatures, brings the issue more attention.

Where does the FCC stand on this issue?
The FCC Chairman Julius Genachowski said that the agency is looking at its options and is pushing Congress to intervene.

"From a communications policy perspective, this raises serious competition and innovation concerns, and for wireless consumers, it doesn't pass the common sense test," Genachowski said in a statement. "The FCC is examining this issue, looking into whether the agency, wireless providers, or others should take action to preserve consumers' ability to unlock their mobile phones. I also encourage Congress to take a close look and consider a legislative solution."

Can the FCC do anything to change the policy?
The FCC works at the behest of Congress. The five-commissioner agency simply enacts and enforces regulation based on the laws passed by Congress. So if the unlock ban is part of a statute passed by Congress, the FCC can't do much, unless the law is changed.

Who has the power to make a change?
Congress is the only institution that can make a real and lasting change so that unlocking your phone without your carrier's permission isn't considered illegal by anyone. While Congress could pass legislation specifically calling out cell phones and tablets for exemption to the DCMA, Sherwin Siy, vice president of legal affairs for the consumer advocacy group Public Knowledge, said what Congress really needs to change is the DMCA itself.

He thinks an overall tweak to the statute would also protect consumers from other industries that are misusing copyright law to protect their businesses from competition. For example, companies that make printers also use this DMCA as an argument to lock customers into buying their specific print cartridges. Garage door manufacturers also use the DMCA and copyright law to make it illegal for consumers to use universal garage door openers.

"So long as you have software embedded into products, there will be temptation to abuse the DMCA and lock customers into a particular system," Siy said. "It doesn't matter whether it's cell phones, ink jet printers or garage door openers, the law needs to be re-examined to protect consumers from all these abuses. There is no federal garage door opener commission that will look out for those consumers."

What are the chances that Congress will actually do something about this?
Siy thinks there is a pretty good chance that Congress will take up this issue and will be able to amend the DMCA to protect cellphone users as well as other consumers.

Have any of the carriers changed their policy on unlocking cell phones since the DMCA was updated in January?
Yes, it looks like some of the major carriers have changed their policies, although it's a little difficult to say for certain when this occurred, because many of them have been cagey talking about their previous policies. And those former policies are no longer available online.

In general, in years past, most of the major carriers would unlock certain devices even if a subscriber was still under contract and the phone was not entirely paid for. But now it looks like some of those policies have changed.

For example, AT&T and Sprint now indicate in FAQs about their terms of use that they unlock devices upon request for customers who are no longer under contract and are in good standing.

But a year ago, when I was researching a story about unlocking iPhones on carrier networks, their policies were more lenient. At the time, a Sprint customer service representative told me that Sprint would provide the unlock code of any phone, so long as the customer has been in good standing for 60 days after the purchase of the phone. This indicates that even if the device had been under contract, customers were still able to unlock their devices. Now Sprint's policy states that Sprint will only provide unlock codes to customers who have devices that are no longer under contract with Sprint (PDF).

AT&T has long had a policy that restricted unlocking of certain devices like the iPhone. But as recently as a year ago when I wrote my previous story, AT&T unlocked other devices for customers in good-standing, even if they were still under contract. The only stipulation was that they had to have had AT&T service for 90 days and were in good standing with the company. Now AT&T's policy specifies that subscribers must no longer be under contract with AT&T and they must have had their service for at least 60 days before the company will offer an unlock code.

T-Mobile also now requires that phones be completely paid for before the carrier will provide an unlock code.

By contrast, Verizon has no such restriction. According to spokeswoman Brenda Raney, so long as your account has been active and in good-standing for 60 days, Verizon will provide you with what you need to get your phone unlocked. This is the same policy the company had a year ago when I inquired about unlocking the iPhone 4S. This policy applies to all 3G global phones. And Raney said that the carrier's 4G LTE phones are not carrier locked.

Why would I want to unlock my phone anyway?
There are two main reasons to have an unlocked device. The first reason is so that you can take your existing phone to another carrier. Typically, in the U.S., AT&T and T-Mobile customers will take their phones from either of these networks to use on the other's network. The other reason to unlock your phone is that you can use it on a local carrier's network when you travel abroad. Using a local carrier network is much cheaper than roaming with a U.S. phone while traveling internationally.

Some phones are already sold unlocked, including certain versions of the iPhone and the Google Android Nexus 4. But these phones are not subsidized by the carriers and cost a lot more than the subsidized devices.

Can any cell phone be unlocked and used on another carrier's network?
Having an unlocked cell phone means you can change carriers whenever you want, so long as the carrier you are changing to uses the same underlying network technology and the same radio frequencies. This works best for people who have GSM devices. GSM is a network standard that is used around the world. AT&T and T-Mobile USA are GSM carriers in the U.S.

These devices use SIM cards that can be removed and replaced with another carrier's SIM card to activate service on a different carrier. Replacement SIM cards only work on GSM devices that are unlocked. If a device is not unlocked, and a SIM from another carrier is inserted, the phone will say it is unable to connect to the network.

It's much more difficult to use an unlocked CDMA phone on another carrier's network, since these phones don't use SIM cards to connect to the CDMA network. This means that to activate such a phone, a user would have to get the carrier to manually activate the device on the new network.

Verizon Wireless and Sprint are CDMA carriers. And it is difficult, if not impossible, for users to use a Verizon phone on Sprint's CDMA network and vice versa. That said, some phones on Verizon and Sprint also have SIM cards so that they can connect to GSM networks. These phones can also be unlocked, and the GSM portion can be used on GSM carriers' networks.

When you get into 4G LTE devices, it gets even more complicated. Even though carriers may all use the same network technology and they all have SIM cards in their devices to activate service, different carriers use different radio frequencies. This means that even if a 4G LTE device is unlocked, it probably won't work on a competitor's network anyway because of technical restrictions in the devices. So even though Verizon's 4G LTE devices are all unlocked, you can't use them on any other carrier's 4G LTE network anyway.

Will I get in trouble if I unlock a phone myself without authorization from my carrier?
Technically, a carrier or manufacturer could sue you for violating the DMCA. According to the CTIA, the wireless industry's trade association, the penalties can be pretty stiff:

The penalties for unlocking a subsidized wireless phone without carrier consent can be severe. Civil penalties are based on the carrier's actual damages and any additional profits of the violator, or a court can award statutory damages of not less than $200 or more than $2,500 per individual act. Criminal penalties are even more severe: any person convicted of violating section 1201 willfully and for purposes of commercial advantage or private financial gain (1) shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; and (2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense.

But that doesn't mean that an alarm goes off at AT&T headquarters if you unlock your phone without permission. And the reality is that you generally need your carrier to provide the unlock code and the step-by-step process in order to unlock the device.

Are there other ways to unlock my phone without getting the code from my carrier?
All it takes is a quick search on the Internet to pull up sites that claim to offer unlock codes for various devices on just about every carrier. You could get your phone unlocked this way. I looked online and prices for unlock code availability vary depending on devices. You could be asked to pay anywhere from $1.29 to $10 for an unlock code and instructions from one of these third parties.

Are these alternatives for unlocking legal?
Again according to people in legal circles that's debatable. Some people would argue that the DMCA restrictions don't apply to cell phones, period, which means a carrier wouldn't prevail in their claim against you, even if they chose to sue you. Of course, the industry would argue otherwise.

In all honestly, the carriers would likely sue the company providing the code instead of suing you individually. And according to Public Knowledge's Siy, the way the DMCA statute is worded if someone else does the unlocking for you, they are subject to violating the copyright instead of you. So you may not be liable anyway.

To be clear, I am not advocating that people go out and test the legal waters by potentially violating the DMCA. I am only pointing out that he legality of how this statute is applied to cell phone locks is very much up for debate. And until the law is actually tested in court or until Congress amends it to make it more clear, it's difficult to say whose interpretation is correct.