M+E Daily

The Obama Administration issued a statement Monday strongly endorsing consumers’ right to unlock their cell phones that could hold broad implications for the use of digital rights management in a wide range of applications.

The statement came in response to a petition posted on the White House website’s We The People page on January 24, in response to the Library of Congress’ decision not to renew the Digital Millennium Copyright Act exemption it granted three years ago that allowed cell phone users to circumvent  the locks in order to switch their phones to a different wireless service once out of contract. The exemption had been granted under the DMCA’s triennial review process that allows the Librarian to grant limited exceptions to the law’s ban on circumventing access control technologies.  The exemptions are not permanent, however, and must be reapplied for and renewed every three years.

The petition, started by Sina Khanifar, drew over 114,000 signatures, well about the 50,000 needed to trigger a formal response from the White House. In this case, the Administration not only agreed with the petition, it went beyond its specific request to include the unlocking of tablets as well:

The White House agrees with the 114,000+ of you who believe that consumers should be able to unlock their cell phones without risking criminal or other penalties. In fact, we believe the same principle should also apply to tablets, which are increasingly similar to smart phones. And if you have paid for your mobile device, and aren’t bound by a service agreement or other obligation, you should be able to use it on another network. 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.

By itself, the White House statement does not change the current status of cell phone locks. The law vests the power to approve the exemptions to the Library of Congress, which is an arm of the legislative branch, not of the executive branch. But the Administration said it “would support a range of approaches to addressing this issue, including narrow legislative fixes in the telecommunications space that make it clear: neither criminal law nor technological locks should prevent consumers from switching carriers when they are no longer bound by a service agreement or other obligation.”

Whether any effort at a legislative fix could really remain narrowly focused as the White House envisions, however, is far from certain. As the statement implicitly acknowledges — and as a separate statement by FCC chairman Julius Genachowski makes fairly explicit — the anti-circumvention provision of the DMCA, at least in the case of phone locks, drags copyright law into realms that have nothing to do with copyright, such as competition law and telecommunications policy. 

According to Genachowski, “From a communications policy perspective, [the removal of the exemption] raises serious competition and innovation concerns, and for wireless consumers, it doesn’t pass the common sense test.”

That’s an argument critics of the DMCA have been making for a long time. By restricting the movement of digital content between and across platforms, access control technology not only can limit consumers’ choice as to how to consume that content, it can limit the ability of distributors and retailers to compete among themselves.

Critics of the law are certain to seize on the White House statement as confirmation of their view. By putting the question in play, and by opening the door to legislative changes to the DMCA, the Administration, whether it meant to or not, may have opened a can of worms that will be hard to reseal.