Letter to Congress: Fix the Phone Unlocking Problem and the Failed Law That Caused It

Today EFF joins a broad coalition of over 40 groups and individuals in sending a letter calling on Congress to create a permanent phone-unlocking exemption to the Digital Millennium Copyright Act (DMCA) and to start the process of reforming the anti-circumvention provisions of that law. The coalition represents not just public interest groups, but startup companies, industry organizations, academics, and others.

Since the White House responded to a widely-circulated petition by calling for a fix to the phone unlocking, we have seen  a handful of misguided legislative proposals that would either fail to solve the problem at all, or provide only a temporary solution. In today's letter, we explain why the American public needs a complete and permanent fix:

Codifying the legality of wireless device unlocking will provide the certainty that this law will not stand in the way of consumer rights and competitive markets, now or in the future. Codifying an unlocking exemption brings the law in line with common sense and will prevent yet another return to a flawed process that creates a perpetual re-lobbying of many settled issues every three years. [...] We urge the Congress to remove wireless unlocking from this bureaucratic treadmill [...].

But as we've noted previously, the real problem behind the phone-unlocking ban runs deeper, down to the core of Section 1201 of the DMCA. That law makes breaking digital right management software ("DRM") illegal as a default, and its rulemaking procedure puts the burden on the public to come back to the Librarian of Congress and the Copyright Office every three years to explain why circumvention is necessary for specific lawful purposes. And even if an exemption for those specific purposes is granted, the tools to do so remain unlawful.

What is worse, Section 1201 has been used over and over to impede lawful speech, research and innovation. The law was passed in 1998. Fifteen years later, it's clear Section 1201 is far out of line with the public interest.

Today's letter makes the important point that by failing to address this section of the law, Congress

will stunt advances in access to digital media for people with disabilities and may prevent new innovations and competitive uses for emerging devices, as uncertainties around the law and the three-year cycle creates a chilling effect for individuals, businesses, innovators and investors who may be covered by the law.

We've long called for Congress to take its conversation about copyright law out of the "reality-free zone." In that spirit, it should acknowledge the reality today that the DMCA's anti-circumvention provisions are doing much more harm than good. The Register of Copyrights has recently called for broader reform. That reform must start with bringing Section 1201 in line with the public interest.