Why you should sign the phone-unlocking petition right now

The headlines have been fearmongering at their worst, claiming that a recent Library of Congress ruling made the unlocking of smartphones purchased after Jan. 26 illegal. It didn’t. But it did create a bad situation that should be corrected, which is what an online petition is trying to get the White House to change. You should sign the petition today — the deadline for signatures — and the Library of Congress should change its decision. It’s crossed the 100,000-signature threshold that requires the White House to review it, but the more signatures, the stronger the call to action for the White House and Congress to hear.

Thanks to those misleading and hysterical news stories, I had ignored the debate and initially dismissed the petition as silly. But it’s not. Its creator, Sina Khanifar, has crafted an eminently reasonable proposal, and after speaking with him, I applaud his rationality on an issue that so many have been irrational about. Even accounting for his direct interest — he used to sell phone-unlocking services — Khanifar’s reasoning is sounds and compelling.

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Here’s the issue: When you buy a subsidized smartphone (as most Americans do), you buy a device locked to a carrier’s domestic network, even if it has a SIM slot that allows swapping and, thus, running on a different carrier’s network. It makes sense that a carrier that just subsidized the price of that new iPhone 5, BlackBerry Z10, Windows Phone, or Android smartphone to the tune of $200 to $400 wants to make sure you don’t switch to a different network and leave it in the lurch for the subsidy. But the Library of Congress ruling goes about this the wrong way.

(Note: The Library of Congress has the authority to determine what constitutes legal copying and access to information devices, so it has ruled that jailbreaking is perfectly legal, as is ripping for personal use the media you buy. But the law — the Digital Millennium Copyright Act, or DMCA — that gives the LOC this power also forbids U.S. companies from creating software to break copy protection on such personal media, which is why the HandBrake software most often used to do so is French. For some reason, the DMCA also grants the LOC the power to determine unlocking rules for phones.)

As Khanifar notes, when you buy a subsidized phone — whether a smartphone or a regular cellphone — you agree to pay an early termination fee if you break the contract. If you choose to unlock your smartphone for use on another domestic network, you should be able to do so as long as you pay that fee to the original carrier so that it recoups that subsidy. You’ve already agreed to do so when you signed that contract.

But the LOC’s policy doesn’t satisfy a real need: international roaming. Under the LOC’s rules, you must now get carriers’ permission to unlock your phone for use abroad. The U.S. carriers have been pretty good about allowing such unlocked use abroad, but they shouldn’t have that power to decide who can roam unlocked and who cannot. After all, they routinely denied such unlocked roaming in the past. Apple forced the issue on the iPad, the LOC declared unlocking was the customer’s choice for smartphones, and since then carriers have been more reasonable across the board. Now the LOC has backpedaled, returning the decision to the carriers.

Though the U.S. carriers are now pretty good about unlocking phones for international use, they still impose unnecessary burdens. You have to call and ask them to unlock the phone for such use, which can take several weeks — and let them say no. Some carriers require you to have a contract for several months before you can get your phone unlocked for roaming abroad. These are silly impediments — all phones should be unlocked at the outset for international roaming.

The domestic lock makes sense for subsidized phones, but not the international lock, so the LOC should change its rules accordingly. That change would also make U.S. rules more like those in most of the rest of the world, where locking is usually illegal or restricted to domestic locking for subsidized phones only.

There are other reasons the LOC should change its rules, Khanifar argues. One is the trust issue. He argues, and I believe he’s right, that one reason the U.S. carriers have been accommodating of international unlocks is that, until this month, the LOC said they had to do so. He fears they’ll revert to their old bad behavior now that the LOC has changed the rules — that would certainly fit the carriers’ usual greedy behavior. Remember why they locked phones for international use in the first place: to force you to pay their extremely high roaming fees ($1.50 a minute or more, versus paying $10 to $20 for a new SIM abroad that usually has a healthy allotment of minutes included).

A reason I hadn’t considered involves secondhand smartphones. For many people, a previously owned phone is a perfectly good device (which is why Apple continues to have a strong business selling old models even after it introduces its new one each year). But that used device is locked, and the new owner has no way to unlock it; only the original user can unlock the phone, with no note of the new owner as the customer of record. The result: The carrier won’t unlock the phone. If all phones were unlocked by default for international roaming, there wouldn’t be an issue.

The same problem occurs if you want to switch carriers but keep using your favorite smartphone after your contract expires. That’s why the carriers should be forced to unlock phones domestically too after the initial two-year contract has been satisfied — and the subsidy repaid. At that point, the carrier has no real excuse to keep the domestic lock, other than greed. But today, the carrier keeps a permanent lock on all subsidized phones.

Khanifar’s petition asks the White House and Congress to agree on a law that would make unlocking phones permanently legal. That’s just common sense. Here’s what such a law should require:

• All phones sold in the United States should be unlocked for international use.
• Customers should be able to have their existing phones unlocked at no charge and have the unlocking take no more than 24 hours after making a Web or phone request.
• People who buy used phones not reported stolen should be able to have them unlocked domestically and internationally by any carrier that provides the new owners access to its network for that device, for a fee not to exceed $25 per device.
• Customers who buy subsidized phones have the right to unlock their phones domestically while still under the initial contract by paying the early termination fee.
• All subsidized phones are automatically unlocked domestically once the initial contract has been satisfied (that is, when the subsidy or hardware installment payment that justifies the domestic lock is paid back).
• The authority of the Library of Congress granted by the DMCA over unlocking should be revoked — the DMCA is the wrong legal framework for unlocking, which has nothing to do with copyright protection.

Time is running out to advocate for these needed changes. Sign the petition right now.

This article, “Why you should sign the phone-unlocking petition right now,” was originally published at InfoWorld.com. Read more of Galen Gruman’s Smart User blog. For the latest business technology news, follow InfoWorld.com on Twitter.