Legality of Cell Phone Unlocking

UnlockJunction · Thread Author #1 12-30-2010, 08:02 PM

We often get questions about the legality of unlocking a cell phone, and I figured that sharing this information with all of you might calm any concerns about unlocking. Simply put, it is 100% legal to unlock a mobile phone in the United States.

Although the answer is simple, there is a rich history of legal action on this topic, and a few years ago, the answer was not as defined as it is today. For many years, telecommunication service providers have used software locks in mobile phone operating systems to prevent customers from using devices on a competitor’s network. Device owners who want to use their phone on another network (i.e a customer wants to use their T-Mobile branded and locked phone on AT&T) must disable this locking software by accessing the mobile firmware and enabling the device to work on any network.

In 2005, many of the largest wireless carriers and cell phone manufacturers stepped up their challenges to businesses and individuals who were unlocking devices, claiming that any attempt to disable the mobile firmware of a cell phone constituted a violation of the Digital Millennium Copyright Act, or DMCA. The DMCA is a 1998 law that extended copyright protection online, and criminalized “the production and dissemination of technology whose primary purpose is to circumvent measures taken to protect copyright, not merely infringement of copyright itself.” While certain software and applications were considered exempt from the DMCA, cellular phone unlocking was not specifically addressed.

In response to the moves of the wireless carriers and manufacturers, a consumer advocate by the name of Robert Pinkerton joined forces with a cellular phone recycling company, The Wireless Alliance, and filed a request with the Copyright Office of the Library of Congress for an exemption to the DMCA for mobile phone unlocking. The request notes that:

“Using a mobile handset on a different network is clearly non-infringing activity. The customer is not copying the firmware, nor is he exercising any exclusive right the copyright owner has in the mobile firmware. Rather, the circumventor accesses the firmware merely to reprogram it to work on a different network, or to utilize a different SIM card.”

Furthermore, the petition cited a number of reasons that cellular phone unlocking should be exempt. Bundling of mobile phones (hardware) and wireless service subscriptions is common practice in the United States, but by locking mobile phones to a network and refusing to allow consumers to utilize the hardware on a competitor’s network, the carriers raised switching costs and created an anti-competitive environment, with attendant higher costs and lower quality of service. Additionally, by locking mobile phones, carriers contributed to higher than necessary rates of device turnover, adding to the significant problem of electronic waste. Lastly, because locked phones cannot be used overseas, the carriers contributed to the “digital divide” between nations, as poorer nations suffered from lack of access to technology that was locked to U.S. carriers.

In November of 2006, the United States Register of Copyrights finally issued a ruling, and exempted mobile phone unlocking from the DMCA, specifically offering protection to: “Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.”

In 2010, the U.S. Copyright Office extended DMCA exemptions to cover Apple iPhone Jailbreaking and further reinforced the prior decision to exempt mobile phone unlocking for changing wireless carriers. Although carriers and manufacturers still retain the right to put obstacles in place to prevent consumers from switching networks, circumnavigating those obstacles is perfectly legal, and thankfully, relatively simple!

unlockthatphonecom · #2 12-30-2010, 09:49 PM

lot of big words in there haha but good piece!

UnlockJunction · Thread Author #3 12-30-2010, 10:06 PM

Haha, I guess so, but we get that question so often that I figured I would share - wrote that as a blog post this evening, figured some people here might find it useful.