In October 2012, the Librarian of Congress removed legal protections for mobile phone owners who wanted to unlock their devices for the purposes of switching carriers. By January 2013, when this ruling went into effect, people were outraged to discover that using their own property, phones that they owned, and even phones out of contract to bring them from one carrier to another, was a crime - potentially even a felony punishable by five years in prison.
A massive online campaign on this issue led all carriers to announce - under pressure from the FCC - that they would now allow consumers to unlock their devices. That campaign led to legislation codifying that any consumer could unlock their device without legal liability.
But after the legislation was introduced and gained initial committee approval, special interest groups rewrote the bill at the 11th hour, inserting a provision that some have called a "poison pill." That bill passed the House.
The Senate Judiciary Committee has now alleviated the problems contained in the House bill and yesterday it approved updated legislation, which is being sent to the Senate floor for final consideration.
The Librarian of Congress outlawed one of the few examples of working competition in the wireless market: the ability of consumers to bring a phone from one carrier to another and thus force carriers to compete on price, reliability, speed and availability. Now, over a year after that ruling its effects are evident.
As is the case with many examples of cronyism, incumbent special interests benefited. The phone resale market, for iPhone's in particular, has been severely impacted, and consumers are unable to unlock their devices as websites offering these services have shut down in fear of civil or criminal liability.
But the American people are increasingly standing up against cronyism and didn't take this lying down.
The American People Responded
When the American people saw the Librarian of Congress - an unelected bureaucrat that few Americans had ever heard of, suddenly ban a pro-consumer and pro-competition technology at the behest of corporate lobbying - they immediately knew what was happening and they acted. But unlike SOPA/PIPA, this online movement was about passing new legislation, not just stopping bad proposals. In the case of phone unlocking, the damage had already begun.
When I started working on this issue I was told that any form of legislation on this issue would be impossible. Because taking on the phone lobby was simply a non-starter in D.C.
New technology disrupts old market models. But new technology also disrupt old political models. And with the phone unlocking campaign, we are proving that political disruption is entirely possible - in fact, it may be inevitable.
So What Happened on the Unlocking Campaign?
After the Librarian of Congress's ruling went into effect, 114,000 Americans signed the White House "We the People" petition demanding action. It was the first petition to hit the new benchmark of 100,000. When the White House came out in favor of phone unlocking, this petition became the first online White House petition to lead to legislation.
When the legislation that passed out of committee went to the House floor in February, an extremely unusual thing happened, a political blue-moon event that may have violated congressional parliamentary procedure. A different bill was put on the floor, one that no one has seen in committee, and it included a new provision that caused all of the major groups supporting phone unlocking to pull their support (Public Knowledge, Electronic Freedom Foundation, Generation Opportunity, R Street and others).
As a leader on the phone unlocking campaign I remained hopeful that things could improve in the Senate. But others in this campaign were more vocal in their opposition to the new legislation.
We now know, as we suspected then, this wasn't an accident. Rather, this was likely the result of lobbying by MPAA and Disney - according to lobbying disclosure forms - who were silently opposed to the phone unlocking legislation. Phone unlocking was illegal to begin with not just because of the Librarian of Congress, but because of the underlying legislation giving him authority to begin with: the Digital Millennium Copyright Act (DMCA).
While the DMCA was written to protect copyright, technology has changed significantly since 1996. This antiquated legislation has pernicious and unpredicted effects upon consumers, innovation and the economy in general, by making many technological alterations a crime - technologies that have nothing to do with copyright. When the DMCA was passed many technologists and legal scholars warned that in the future this legislation would negatively affect numerous technologies that they hadn't even thought of at the time. Now their fears have come to pass.
Replacing a bill in the middle of the night after it passed committee, as was done with the phone unlocking bill, as I was told by a Hill staffer - at the "14th hour" - was so unusual that it has led two congressmen to write inquiries to House Speaker John Boehner contesting its legality under House parliamentary procedure. Once the legislation was altered, several members of Congress, including Reps. Jared Polis (D-Colo.), Zoe Lofgren (D-Calif.) and Thomas Massie (R-Ky.), switched their votes from yes to no. They then took the House floor to debate against the legislation they were previously co-sponsoring.
Despite members pulling their support, and all outside groups opposing the lobbyist-rewritten version, it passed Congress.
We were disappointed to be outgunned in the middle of the night to a bunch of special interests who wouldn't even debate their opposition to the legislation in public.
But Now It's Being Fixed
But after all that bad news, now there is some reason for optimism. Senate Judiciary Committee Chairman Patrick Leahy had provided a manager's amendment for the Senate version of the phone unlocking bill that restores it to the original version - without the lobbyist rewrite. Leahy's office reached out to those of us as part of the campaign on unlocking, including myself, and we expect this legislation to pass - supported by both Republicans and Democrats - as well as the outside groups that originally backed phone unlocking. Then we expect the House to pass this version - thus sending it to the president - " one of the very few bills expected to be enacted this Congress.
While this is certainly a good development for consumers and the market, we should be clear on what this bill does and what it doesn't do. It says that consumers can unlock their devices, and others can provide that service for them; however, this only applies through 2015. That year, the Librarian of Congress will rule all over again on whether to ban this technology. If it's banned again, two more years may pass before Congress pays attention and fixes it.
That will not provide certainty to the private sector, and itt's illogical that the American people will have to ask permission every three years, in 2015, 2018, 2021, 2024, 2027, 2030 etc., from the Librarian of Congress to do something with their own devices that everyone believes is a good for the consumer and the market.
Whether or not someone goes to jail for a felony should not depend on the whims of an unelected bureaucrat. If everyone thinks that unlocking is a good thing for the market and consumer, why don't we just fix it permanently?
The answer of course is special interest groups that would oppose any type of permanent legislation, and temporary fixes where everyone has to come back to Congress, is exactly the type of legislation that benefits all special interest groups and lobbyists (you make usually make more money lobbying every few years for the same bill then winning on one big bill).
What Else Must Be Done
While this legislation is a good first step, Congress needs to continue this momentum to get serious about substantial reform. We must ask ourselves, "Do we want a future where companies can put chips in all our devices and then make it a federal crime for us to use our own technology in a way they don't like?"
This may well be the state of current law under the DMCA:a world where everyone is a felon for using their technology as they see fit; a world where companies can effectively create their own laws by putting chips in devices; a world where anything falls under the guise of copyright even when it has nothing to do with copyright. Such a world appears scripted out of a dystopian science fiction novel and violates our natural rights by making million of Americans felons for no cognizable reason.
In such an emerging world, our very freedom would be dependent upon the good will of your local prosecutor choosing not to prosecute you for using different coffee cups, or for installing a different operating system on your smartphone. In a post-IRS/tea party scandal-era, who would trust their local prosecutor with such discretion?
For example Keurig's new coffee machines are expected to have a digital barcode system, to prohibit non-Keurig coffee cups, now that their patent expired in 2012. If a consumer were to alter a Keurig 2.0 machine to use other coffee pods, such an action may well be a crime under the DMCA, despite it being a good thing for competition and the consumer. By any reading of copyright law, this is has nothing to do with copyright the purpose of the law itself, and is instead a tool for companies to facilitate a monopoly.
How could a free society allow for individuals to face jail time for "unlocking" their coffee maker?
If policy makers want to embrace innovation, allow for a free market, and respect personal freedom and the Constitution, then we need to restructure laws made before modern technology that now apply in pernicious and ridiculous ways. By the time people are outraged, much of the damage has already been done.
The Senate version of the unlocking legislation is a good bill that needs to pass. But Congress must then take on the real steps of removing the authority from the Librarian of Congress - and legalize all technologies that do not affect copyright.
Derek Khanna was listed in the Forbes 30 Under 30 for Law and Policy for 2014. He is a Yale Law Fellow, columnist and policy expert. He wrote the House Republican Study Committee Memo on reforming copyright law and spearheaded the campaign on cellphone unlocking. Follow him on Twitter.