First I would like to thank readers of this site and others in the tech community for their support of our phone unlocking campaign. As you may know, that campaign culminated with 114,000 signatures on the White House petition website, an FCC and White House endorsement of unlocking and several bills introduced in Congress. Legislation is usually a slow process, but, here, Congress appears to be moving quickly on this issue — potentially even putting this legislation up through suspension meaning that it wouldn’t receive any debate or amendment but can be done much quicker.

On Thursday, Chairman Goodlatte’s legislation will be before the House Judiciary IP Subcommittee. Unfortunately, while the wireless industry and others who have been against unlocking will be represented, there will be no witnesses at the hearing who have been part of our campaign for unlocking (however, Consumers Advocacy may be an advocate for the consumer on this issue). This is very disappointing news.

I met with some of the Members and their staff on this unlocking issue – and I was asked to submit formal written testimony to the committee. This testimony will be available to all Members during the hearing to consider while they also hear from their witnesses. I have been writing up a thorough presentation on the facts and why unlocking is important for the mobile market, liberty and consumer choice. Now I’m asking for your help and perspective. If you have a story on how unlocking affected you, I’d like to hear it. If you have information that should be relevant to the testimony, I want to include it.

In particular, Chairman Goodlatte’s legislation would legalize unlocking, but only temporarily, allowing the Librarian of Congress to rule all over again. At the same time, it will keep this technology as illegal for businesses to develop or sell.

If you are an entrepreneur who would like to offer a service for consumers in this category I would love to hear your story. What is the actual impact of unlocking being illegal, and if it were legalized for consumers and businesses what new market models may flourish?

Does anyone have any information on the impact of this restriction upon the resale market? Has anyone been sued or prosecuted for this? I am particularly interested in stories from our service members who may have to unlock their phones abroad. Has anyone ever called their phone provider and asked to unlock after their contract expired and were told no? These are stories I want to include.

Please comment here, e-mail me at Khannaderek@gmail.com, tweet me at @derekkhanna, or comment at Facebook.com/derekkhanna. I’m looking forward to hearing your suggestions.

In the wake of my report on copyright reform, my last day on the Hill was January 6th. Since that time, I have dedicated the past five months to this campaign, which I believe is a critical post-SOPA battle. As I argued on Boing Boing, this is a test of our ability to move positive action for small, winnable battles. If we can win on this issue, we will be able to build on this coalition going forward. Here is another article on how to approach reforms to copyright law.

So again, I want to thank all of you, I hope to hear data and stories from you. And I want to give credit where credit is due. Many were involved in this campaign, including Public Knowledge and Sina Khanifar. Without Jennifer Grancik with Stanford Law there may never have been an unlocking exception to begin with. And without thorough coverage from BestNetTech, this issue may never have risen to prominence.

Well, what a difference 114,000 signatures, a Presidential endorsement, and an FCC investigation make! As a lead activist on this issue, I can say that on Capitol Hill there has been a significant sea change on the issue of cellphone unlocking. Numerous Republicans and Democrats have come out publicly in favor of unlocking and against the criminal penalties at hand. On Monday, only a few hours after the Presidential endorsement of unlocking, we heard from Rep. Chaffetz that he was working on legislation — through him tweeting:

Working on leg to unlock your mobile phones.It is a freedom issue.You own the phone, you should be able to unlock it. .@derekkhanna

— Jason Chaffetz (@jasoninthehouse) March 5, 2013

On Tuesday, Senator Wyden introduced his legislation, the Wireless Device Independence Act. This is a good first step but unfortunately, it does not actually address the problem yet. In its current text, it seems to allow for individuals to unlock their own phones, but it keeps developing, selling, trafficking and discussing the tools and technology of cellphone unlocking still illegal. Without these tools being legalized, unlocking is still effectively illegal.

Also on Tuesday we heard from numerous Members of Congress that they support legalizing unlocking, including Rep. Darrell Issa and Rep. Jarred Polis. Additionally, there was a statement by Senator Patrick Leahy that was seen by many as giving a green light to other Democrats to endorse the legislation. Sen. Leahy, Chairman of the Judiciary committee, released this statement:

“I intend to work in a bipartisan, bicameral fashion to restore users’ ability to unlock their phones and provide them with the choice and freedom that we have all come to expect in the digital era,”

Then on Thursday, Senator Amy Klobochar, Senator Richard Blumenthal and Senator Mike Lee introduced the Wireless Consumer Choice Act (and Rep. Anna Eshoo is expected to introduce companion legislation in House).

From Senator Lee:

“Consumers shouldn’t have to fear criminal charges if they want to unlock their cell phones and switch carriers… Enhanced competition among wireless services is the surest way to increase consumer welfare.”

This statement is confusing as it is supposed to be about this bill – but that’s not actually what the Wireless Consumer Choice Act DOES.

The actual text of the Wireless Consumer Choice Act says that: “[the FCC] shall direct providers of commercial mobile services and commercial mobile data services to permit the subscribers of such services, or the agent of such subscribers, to unlock any type of wireless device used to access such services.” This is quite a confusing bill text. Here are a few problems. What does permit mean in this context? Is it:

1. Carriers can’t actively stop consumers with technological means (unlikely).
2. Carriers can’t stop consumers (but which doesn’t address manufacturers or others like the DOJ going after you for criminal charges).
3. Facilitate the unlocking by providing the codes upon request? Would they have to give the codes even if you are in contract to not unlock? Doesn’t permit mean you are required to period?

The one thing we know for a fact is that “permit” doesn’t have anything to do with adjusting their contractual terms to “allow” for consumers to unlock under their contract (all legislation appears to have a clause asked for by CTIA that it won’t touch existing contract law). Essentially, this legislation says that the wireless companies can’t enforce Section 1201 of the DMCA.

But that doesn’t protect against the manufacturers like Apple, HTC, etc. coming after users (as was the case for Sina Khanifar, who joined me on the activism campaign for unlocking). And it doesn’t protect against the criminal provisions, which would require another law. So since it has nothing to do with criminal law, it’s confusing as to why Sen. Lee’s statement would be about criminal law; however, it appears that he may introduce new, supplemental legislation that specifically deals with the criminal provisions as well.

Ok, so we are now at a total of two introduced bills.

Lastly, and perhaps most promising, as mentioned at the top, it appears that Rep. Jason Chaffetz is working on legislation and expected to target the unlocking criminal penalties, like Senator Wyden’s bill, but Rep. Chaffetz’ bill appears to be seriously considering doing so in an inclusive manner to also legalize the tools. In legalizing developing the tools, trafficking, selling and using the tools, such a bill would be the first real bill to actually make unlocking lawful.

Just to be clear, legislation goes through a process, and these bills will be revised and go through a committee. These committee hearings may be one of the first times that Congress has discussed some of the issues with the DMCA in the recent past. It’s really pretty incredible that they haven’t even held oversight hearings.

Unfortunately, none of the bills under consideration or under discussion appear to include anything beyond unlocking. They do not include anything to allow for accessibility technology for persons who are blind or deaf, allow for jailbreaking, or allow for computer science research. These issues will require additional activism and engagement to get them on the table.

If a narrow bill passes on unlocking, instead of taking on more substantive reforms, it is my intention to next lead a targeted campaign on accessibility technologies. There is no legitimate governmental reason for keeping these accessibility technologies illegal — and we cannot continue to deny persons who are deaf and blind technology that can help them because a law was written before modern technology, outlawing them by default.

Today is just over two months since my last day on Capitol Hill — and in those two months I have seen the anti-SOPA coalition accomplish their first forays in actively passing positive legislation. These may seem like small victories, but as I discuss in my piece for Boing Boing, these are small, strategic, affirmative victories that will culminate in even greater action. I encourage people to stay involved and continue to reach out to their Members of Congress on this issue. It’s up to us to ensure that they actually fix the problem, as opposed to just checking the box.

Update: This afternoon we find out that Rep. Goodlatte, House Judiciary Committee Chairman, will be introducing a bipartisan bill with Ranking Member Rep. Conyers on this issue — but it’s unclear what they have in mind. Let’s hope that Goodlatte’s bill actually solves the problem by including legalizing the tools permanently — rather than a check the box approach. But Goodlatte was also an original sponsor of the Stop Online Piracy Act (SOPA) so we will have to see their approach. The worst check the box approach would be to simply reverse the decision of the Librarian of Congress and provide a temporary “exception” for three years and let the Librarian rule on this again in three years. That would keep the underlying technology illegal but also require the same triennial review process, that has failed here, to ask permission. That would be truly unacceptable.

It’s a pleasure to write about my favorite BestNetTech posts of the week. I have been a longtime fan of BestNetTech and can attest that the small tech literate crowd (yes it exists) on Capitol Hill are also avid readers. I was the Capitol Hill staffer who worked for House Republicans and authored the report on copyright reform (BestNetTech article). As of January 6, 2013, I no longer work on Capitol Hill but am still involved in many technology issues, currently spearheading some of the advocacy on unlocking cellphones.

BestNetTech was quite a resource when we were fighting SOPA — at the time I worked for Senator Scott Brown who came out against SOPA and BestNetTech provided timely and accessible commentary on SOPA and other technology issues. Near the beginning of that fight, when it was called COICA, the content industry came to visit us with Senator Scott Brown and it was presented to us for the first time. They presented it as a relatively simple bill that that would, “. . .end online piracy by blocking the URL.” My response at the time was, “Wait at the DNS level? But can’t you just type in the IP address?” Immediately, it was clear that this legislation was highly problematic as it would amount to censorship and that it would be extremely ineffective. At the time, I wrote a 20 page internal memo for our office on how terrible COICA was. In my research at the very beginning, there were few articles on this topic, but BestNetTech had a number of valuable resources even when it was COICA before it became SOPA/PIPA. This timeliness was critical, and I’m not the only one who has used BestNetTech as such as resource.

It’s a common — and unfortunately effective — tactic in Washington, DC to make an issue seem more complicated than it is to intimidate dissenting voices. This is particularly true on intellectual property laws. While there is surely complexity in IP issues, complexity for complexity’s sake is not productive, and I appreciate that BestNetTech can take complicated and even academic arguments and distill them to an audience who may not have time to read the literature in depth — but may be presented with some of these arguments for the first time.

So with that, I will turn to the stories of the week. This week BestNetTech continues to detail how some of our laws affecting technology have run amok impairing both the market and our civil liberties.

First, Masnick’s piece on unlocking cellphones, now being presumably illegal, was spot on, and his further coverage of the ongoing advocacy movement to reverse this situation was a great read. This is an issue that I’m personally involved with as I wrote the major article on this issue over at the Atlantic and the petition creator and I wrote a follow-up article detailing how his company was shut down as a result of unlocking cellphones becoming illegal.

Masnick rightfully explains that, “While the reasoning for not renewing the exemption was that many carriers now allow unlocking anyway, that’s not true across the board, and there are plenty of limitations. Just the fact that you need to ask permission to do what you want with a device you legally purchased and own should be troubling enough.” Many people appear to agree.

The petition we have been spearheading now has over 69,000 signatures but will need BestNetTech readers help to get over 100,000. This is a clearly an issue that has engaged a lot of people who believe in basic property rights and that they should be able to unlock their own cellphones. The first piece in the Atlantic got over a million hits and was number 1 on Reddit.

BestNetTech also detailed Public Knowledge’s submitted question on this issue for President Obama’s Hangout yesterday. Despite being the 8th most popular question it was not asked (however, bloggers found time to ask President Obama to help name their child).

Like other articles by BestNetTech this week — such as the piece on the DMCA being used to impair mechanics repairing your car — the unlocking issue highlights how while the DMCA was created and passed to safeguard copyright it has been used for radically divergent purposes. It should not be entirely surprising that the DMCA may need revisions and oversight. The DMCA was passed three years before the iPod, six years before Google Books and nine years before the Kindle. But now that it’s clear that the DMCA is being interpreted in a way clearly contrary for which it was passed, its incumbent upon Congress to act. My article explains: “Congress’s inaction in the face of the decision by the Librarian of Congress represents a dereliction of duty. It should pass a new law codifying that adaptive technology for the blind, backing up DVD’s to your computer, and unlocking and jail breaking your phone are lawful activities regardless of the decisions of the Librarian of Congress.”

If you agree, I hope you will also sign the petition and get us over 100,000.

Second, I’m going to have to slightly break the rules of posts of the week and suggest that everyone watch the Copyright Explained PandoHouse Rock video — which is pretty terrific but technically was from last Friday.

Third, the piece on the impact of the three strikes law in France: Three Strikes May Decrease File Sharing, But if Sales Keep Dropping, Who Cares. It details how, “The latest data out of France shows that, despite Hadopi (the administrators of the 3 strikes program) claiming some sort of victory because stats on file sharing are down, the bigger issue is that the sale of recorded music keeps declining.”

This piece is particularly fascinating, because inside the Beltway the threat of piracy is often used as the problem requiring invasive solutions. The argument goes, rampant piracy causes content industries to lose lots of money, therefore we have to restrict individual freedom with x or extend copyright even further, etc. I personally have problems with this argument, but the data from France demonstrates how even with file sharing declining, it isn’t solving the content industry’s problem. It will be fascinating to see if this data is consistent with data in other countries as well.

Fourth, Masnick’s newest piece on border searches is a bit scary: Homeland Security: Not Searching Your Laptop Doesn’t Benefit Your Civil Liberties, So We Can Do It. Because of how crazy many laws are in application to modern technology, many of us are accidentally committing relatively trivial violations of the law on a regular basis. In a world where all of our technology can be searched at the border this should be disturbing. For example, some courts have held that simply violating the terms of service on a website is a violation of the law, and of course we have all likely done that (until recently ToS at Google prohibited minors from using Google). Today unlocking your phone and jailbreaking an iPad are illegal. In a world where most average Americans have violated these and other laws, and our laptops, phones and tablets have “evidence of these violations” and are searchable without reasonable suspicion because we are crossing the border, that’s a precarious place to be. And it doesn’t seem to advance any form of national security benefit either as the searches are not limited in scope. The statement that Masnick highlighted by the DHS is particularly troubling:

“We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits.”

Believing that there is no benefit for our civil liberties by requiring reasonable suspicion is truly dangerous thinking. In a world where transfer speeds continue to increase, with no reasonable suspicion requirement, what would stop the government from a dragnet that backs-up and searches the files of every device that crosses the border? It’d be interesting to see, if your device is searched in this manner and it’s encrypted, if you could be required to provide the encryption key — which is a major ongoing legal issue but in a different context in border searches.

Overall a terrific week of timely and insightful coverage. And I didn’t get to mention coverage on CISPA’s expected reintroduction and the Cyber Executive Order. As for me, I’m going to be continuing to advocate for sensible changes in technology policy. Feel free to follow me @Dkhanna11.