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White House Petition on Cellphone Unlocking Receives over 100,000 Signatures

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At 7:37 AM EST on February 21, 2013, a White House petition on cellphone unlocking went over the 100,000 signature threshold on the White House's "We the People" website.  This was the threshold for a White House response.  Now they will will wait to hear from the White House.

How did we get here and what is cellphone unlocking?

On January 26, 2013, the Librarian of Congress issued a ruling that made it illegal to unlock new phones. Unlocking is a technique that allows your phone to use a different carrier. Doing so could place you in legal liability for up to 5 years in jail and a $500,000 fine.

This prohibition is a violation of our property rights, and it makes you wonder, if you can’t alter the settings on your phone, do you even own your own phone?

Overall, this is a clear example of copyright law run amuck – the underlying law was created to protect copyright but it’s being applied in a manner that no legislator expected in 1998 when they voted for the bill. The underlying law, the Digital Millennium Copyright Act (DMCA), was passed three years before the iPod, six years before Google Books and nine years before the Kindle. Now that it's clear that the DMCA is being interpreted in a way clearly contrary for which it was passed, it’s incumbent upon Congress to act.

This ruling is a clear example of crony-capitalism, where a few companies asked for the law to be changed to their pecuniary benefit despite the invasion of our property rights, its impact upon consumers, and its impact upon the overall market. This decision creates higher thresholds to entry for new market participants, which hinders competition and leads to less innovation.

How did this happen? 

Congress passed the Digital Millennium Copyright Act (DMCA) in 1998 to outlaw technologies that bypass copyright protections. This sounds like a great idea, but in practice it has terrible, and widely acknowledged, negative consequences that affect consumers and new innovation. The DMCA leaves it up to the Librarian of Congress (LOC) to issue exemptions from the law, exceptions that were recognized to be necessary given the broad language of the statute that swept a number of ordinary acts and technologies as potential DMCA circumvention violations. On October 28, 2012 with the decision of the Librarian of Congress to let the exception lapse, upon it's implementation several months later, it made an entire class of technology illegal for personal use.  Congress is supposed to set the law, but Congress is complicit in this situation.

When the Librarian of Congress made the ruling (to let the exception lapse) on October 28, 2012 – Congress refused to act.

When that ruling went into effect months later on January 26, 2013 – Congress refused to act.

On January 27, 2013, I published an article The Most ridiculous law of 2013 (So Far): It is Now a Crime to Unlock Your Smartphone that received over a million hits and even briefly knocked the website offline. Despite concern from across the country, online and in the mainstream media – Congress refused to act.

In my follow-up article I called their failure to address this issue “a dereliction of duty.” Not taking no for an answer, average Americans began to mobilize .

The petition - Race to 100,000: 

Since the publication of those articles, I teamed up with Sina Khanifar to spearhead the advocacy on this petition. Sina had personal experience with this ruling, the last time unlocking was illegal his company was shut down as a result. The unlocking issue quickly became viral and was covered by every major technology blog. Public Knowledge's question on this issue for President Obama was one of the most popular for President Obama's Google Plus Fireside Hangout. While it was not asked of President Obama at the time, he will now have an opportunity to address it.  The coalition that eventually led to this success included support from a diverse group of actors including Vint Cerf (co-creator of internet), Rep. DeFazio, the Electronic Freedom Foundation, Public Knowledge, the National College Republicans, and the  Tea Party Nation

This petition appears to be the first petition to achieve the 100,000 threshold for a White House response (until recently the petition threshold was 25,000). This accomplishment demonstrates that people are interested and willing to mobilize on this important issue. This 100,000 show of force makes it clear: the people will not stand for laws that impede their personal liberty and stifle innovation that are enacted as a result of crony-capitalism.

100,000 - What does this mean?: 

People have asked me to specifically address what this means and what can be done. First the White House will respond, as even did for a petition to "Secure resources and funding, and begin construction of a Death Star by 2016."

When the White House weighs in on the cellphone unlocking petition it will then be incumbent on Congress to then address this problem. It's unfortunate that it's easier to get the President on the record than to get one Member of Congress on the record.

This is not a small issue, these are big issues. Laws that ban an entire class of technology and can place people in prison should be taken seriously by Congress and debated in public - not made by some official that few people (even inside the Beltway) have ever heard of (The Librarian of Congress). Laws that can place people in jail should be passed by Congress, not by the decree of the Librarian of Congress. We have no way to hold the Librarian of Congress accountable for wildly unfair laws. There are still plenty of crazy laws passed by elected officials, but at least we can then vote them out of office.

In my piece The Law Against Unlocking Phones is anti-Consumer, anti-Business, and anti-Common Sense, I explained:

“We must ask ourselves: "What specific limitations upon our personal freedom and liberty are we prepared to accept in the name of achieving the goal of protecting intellectual property?" Some limitations may be sound, and Congress should debate them on the record. Obviously, we do not have the right to copy books, movies and music and sell them. But other restrictions are invasive and have nothing to do with protecting intellectual property (like unlocking and jail-breaking your phone or adaptive technology for the blind to read). Restrictions upon the use of technology should receive strict legislative scrutiny because of its impact upon innovation and our personal freedom.”

This is a problem of Congress’s own making – now they should fix it.  Here's another example of how ridiculous this DMCA exception process is. Every three years groups like the American Foundation for the Blind have to lobby Congress to protect an exception for the blind allowing for books to be read aloud. Can you imagine a more ridiculous regulation than one that requires a lobby group for the blind to come to Capitol Hill every three years to explain that the blind still can't read books on their own and therefore need this exception?

Where do we go from here?: 

After February 21, 2013, when over 100,000 people petitioned their government for redress on this issue, it is well past time for Congress to act.

To those who support property rights, innovation and the free market – ask your Member of Congress:

1) Why do the blind have to ask for an exception to use adaptability technology for e-books? Why is developing, trafficking, or selling that technology still illegal? 

2) In a world where we can't unlock our own phones - who really owns our phones?

3) And most egregiously, ask them, for our thousands of service members who deploy abroad and have to unlock their phones for use in theater, why are they criminals for unlocking their own phones without permission?

In my latest piece for the tech blog Boing Boing, Taking on Real Reform in a Post-SOPA World – Let’s Start With Cellphone Unlocking, I prepared a letter for Congress:

That we should have to petition our own government to remove these items from a “technological blacklist” is very unfortunate. If you want to stand up for property rights and against crony capitalism,you can sign the White House petition here.

You can continue to follow Derek's work at @DerekKhannaGoogle Plus and Facebook.com/Derekkhanna.

Read the Congressional testimony by Derek Khanna on cell phone unlocking.

And read Derek's other articles on Prism, in the National Review, the Atlantic and Politix.