Who Owns Your Smartphone?

It’s a basic concept that once you purchase something, not rent but purchase, it’s yours — your property which you can use, abuse, or neglect as you wish. As of last Saturday, that’s not really the case anymore, at least when it comes to smartphones.

Unlocking your smartphone is now officially a crime. In plain English, that means you cannot just buy a phone from one provider and then use it on another one’s network.

Doesn’t sound like a big problem, does it? Let’s take a moment and think about that.

One Librarian to Rule Them All? 

First of all, the way in which choice has been taken from you is truly unsettling. Mark Sullivan at PC World took note of this worrisome angle:

That decision was made not by voters, the courts, or even Congress. It was made by one man, 83-year-old Congressional Librarian James Hadley Billington, who is responsible for interpreting the meaning of the Digital Millennium Copyright Act (DMCA). Billington decided last October that unlocking your phone yourself is a violation of the Act, which was originally written to prevent digital piracy. […]

The idea that a decision that will affect so many, and involves so much money, could rest on a single unelected person is bizarre at best and absurd at worst.

But indeed, the law reads in Section 1201 of the DMCA: ‘Upon the recommendation of the Register of Copyrights, the Librarian of Congress may designate certain classes of works as exempt from the prohibition against circumvention of technological measures that control access to copyrighted works.’

It’s bad enough when legislators who can barely send an email are expected to decide on digital legalities, but the discovery that one 83-year-old man has carte blanche on the subject is disturbing to say the least. Think about it: An unelected bureaucrat has just made a decision about what deserves jail time. According to technology writer Derrek Khanna at The Atlantic, some first-time offenders may be fined up to $500,000, imprisoned for five years, or both. 

Unsurprisingly, Khanna and I share a mistrust of this state of affairs, also finding it disturbing to see copyright legislation (the DMCA) used to justify and support a particular business model. I think it’s a point where most conservatives and liberals would find themselves in agreement if they would take a look at the cold, hard facts of the situation. Khanna writes:

Conservatives should be leading the discussion on fixing this problem. Conservatives are understandably skeptical of agencies and unelected bureaucrats wielding a large amount of power to regulate, and are proponents of solutions like the REINS Act (which has over 121 co-sponsors). However, if Congress truly wants to rein in the power of unelected bureaucrats, then they must first write laws in a narrow manner and avoid the need for intervention by the Librarian of Congress to avoid draconian consequences, such as making iPhone jail-breakers and smartphone un-lockers criminals, or taking away readable books for the blind.

If conservatives are concerned of unelected bureaucrats deciding upon regulations which could have financial consequences for businesses, then they should be more worried about unelected bureaucrats deciding upon what is or isn’t a felony punishable by large fines and jail time for our citizens. And really, why should unelected bureaucrats decide what technological choices you can make with your smartphone? These laws serve to protect the interests of a few companies and create and maintain barriers to entry.

But there is another matter of critical importance: 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.

Who Owns Your Smartphone, Really? 

Then there is the whole subject of ownership. Is it really your phone if you are forbidden to use it the way you want? Mark Sullivan had a great analogy in his PC World piece:

The ban means that you won’t be able to (lawfully) decouple your phone from one carrier and move to another carrier that uses the same cellular technology (GSM, CDMA, etc.) unless your carrier agrees to send you an unlock code. Imagine buying a car equipped with software that prevents you from taking certain roads — and being legally barred from disabling the software!

This decision effectively prevents most instances of being able to legally leave your carrier, even by willingly paying the obligatory fine. The rationale presented by CTIA, the consortium of cellular interests, is that the buyer has only purchased the hardware portion of the phone, not the firmware required to run it. A pretty gymnastic bit of reasoning, isn’t it?

The fine folks at the Electronic Freedom Foundation agree:

‘The DMCA was never meant to enforce mobile phone business models, or to preserve incompatible devices more generally, and the Copyright Office should have said so and granted a broad exemption,’ says Electronic Freedom Foundation digital rights analyst Rebecca Jeschke.

So What? 

With smartphones already constituting the lion’s share of mobile sales, the impact will be broad. It may take a while before the change is noticeable, but I’m sure we will end up seeing cases of people doing jail time out of ignorance of the law. After all, “I bought it, didn’t I?” Let’s hope that we can find ways to challenge this before too many people are affected.

This will also drive up the price of legally unlocked smartphones, putting them further out of reach for the low-income user.

One thing that I am going to be keeping an eye on is the proliferation of tablets, especially the smaller ones. My wife and I have noticed that since we added an iPad to the house arsenal we tend to use it for most things we used our iPhones for. After comparing notes, in a purely unscientific manner, with some collegues I’ve found most of them say the same.

As insensible rulings like this make it more of a pain to use a smartphone, I wonder if people will return to simpler phones but will have a mini tablet for the “smart functions.” You might laugh, but then again, smartphones were pure science fiction just a few years ago.