In October 2012, the United States Copyright Office, part of the Library of Congress, refused to grant an exemption to the Digital Millennium Copyright Act (DMCA) for unlocking cell phones. By only granting a 90 day extension of the previous exemption, consumers are no longer able to unlock their cell phones for use on a different network without carrier permission, even after their contract has expired. Recent efforts by the Obama Administration and Congress seek to reverse this outcome.
The controversy surrounding cell phone unlocking centers on Section 1201 of the DMCA. Intended to prevent hackers from distributing music or movies, Section 1201 prohibits “circumventing a technological measure” that controls access to a protected work. This has been interpreted as also making it illegal to unlock cell phones, as doing so circumvents copyrighted cell phone software. The Library of Congress granted 3-year exemptions to the DMCA for cell phone unlocking in 2006 and in 2009, but Librarian of Congress James Billington refused to grant another extension, arguing that recent case law suggests consumers do not own and are merely licensing the copy of software on their phones. Furthermore, Billington believes cell phone providers now provide adequate options for unlocked cell phones. Both the White House and Congress disagree.
In response to a White House petition calling for the legalization of cell phone unlocking, the Obama Administration expressed disagreement with Billington’s denial of another exemption. Furthermore, the White House believes the exemption should apply to tablets as well. One of the paths advocated by the White House for addressing this issue is a legislative fix. With bipartisan support, numerous bills were introduced in March 2013, both in the Senate and in the House for legalizing cell phone unlocking. The bills currently on the table vary in depth, from amending Section 1201 of the DMCA to legalize unlocking for “interoperability purposes,” to reversing Billington’s decision and granting another 3-year exemption.