Though many people are interested in unlocking their cell phones, some may be hesitant because they worry that doing so might be illegal. Before diving into the details, we are going to skip the suspense and give you a quick summary:
- It is now completely legal to unlock your cell phone. There was a time when it was kinda legal, and when it was kinda not legal, but now it is definitely legal.
- Though it is legal to unlock your phone, please keep in mind that unlocking will not allow you to magically escape your cell phone contract (if you have one) without paying it off.
If those two statements are all that you needed to hear then you can skip the rest of this article and unlock your Samsung or unlock your BlackBerry right now. If you still have more questions, you should read on.
Background and Rationale
The Digital Millennium Copyright Act (DMCA) is a somewhat controversial copyright statute that was signed into law by President Bill Clinton on October 28, 1998. The DMCA covers a range of digital issues including the removal copyrighted content online (take-down notices) and the banning of DRM circumvention methods, for example, tools that allow pirates to make bootleg CDs, DVDs and Blurays.
While the anti-circumvention provisions (section 1201) may seem like they were designed to stop DVD piracy they also had the unfortunate side effect of effectively making it illegal (or at least legally ambiguous) for people to unlock their own cell phones. The argument was basically that even though the customer owned the phone, the software was considered the manufacturer’s copyrighted material and as such unlocking the phone might run afoul the DMCA’s anti-circumvention rules.
If it seems to you that this is one of those cases where the letter of the law is being applied in a way not intended by the spirit of the law, then you are not alone. That is why, as part of the law, the Library of Congress was given the task of reviewing the DMCA every three years to determine if any explicit exemptions needed to be made for areas where the anti-circumvention statute really shouldn’t be applied. In 2006 and 2010 the Library of Congress issued just such an exemption related to unlocking cell phones:
Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network
Twenty Thirteen: No more exemption
For some reason, when 2013 rolled around the Library of Congress got it into their heads that the cell phone unlocking exemption was no longer needed. According to the LoC people now had sufficient options for buying phones factory unlocked that they no longer needed to unlock their new phones:
with respect to new wireless handsets, there are ample alternatives to circumvention. That is, the marketplace has evolved such that there is now a wide array of unlocked phone options available to consumers. While it is true that not every wireless device is available unlocked, and wireless carriers' unlocking policies are not free from all restrictions, the record clearly demonstrates that there is a wide range of alternatives from which consumers may choose in order to obtain an unlocked wireless phone
While this logic may have been sufficient for the Librarians, quite a number of everyday American citizens seemed to be of a different opinion. After the exemption was allowed to expire, many took to twitter and other social media outlets to vent their shock and disappointment and call for a solution.
Eventually over 100 thousand US Citizens signed a petition on the White House's "We The People" website requesting that cell phone unlocking be made legal again. The White House took the petitioners side and responded as such:
The White House agrees with the 114,000+ of you who believe that consumers should be able to unlock their cell phones without risking criminal or other penalties. In fact, we believe the same principle should also apply to tablets, which are increasingly similar to smart phones. And if you have paid for your mobile device, and aren't bound by a service agreement or other obligation, you should be able to use it on another network. It's common sense, crucial for protecting consumer choice, and important for ensuring we continue to have the vibrant, competitive wireless market that delivers innovative products and solid service to meet consumers' needs.
This is particularly important for secondhand or other mobile devices that you might buy or receive as a gift, and want to activate on the wireless network that meets your needs -- even if it isn't the one on which the device was first activated. All consumers deserve that flexibility.
How a bill becomes a law
Following the White House's response, several bills were tabled by congress members to address the issue, and the Unlocking Consumer Choice and Wireless Competition Act was the one that made it all the way through. It was signed into law by President Obama on August 1, 2014.
So does that mean that it will be legal forever?
Well, technically all that the law really did was reverse the previous Library of Congress decision temporarily, the LoC still makes determinations every three years. Nevertheless, given that the American people, the Executive branch and the Legislative branch all made their positions pretty clear, I don’t anticipate that the LoC will ever remove unlocking from the exemption list again. As a matter of fact when they met to decide the 2016 rules they expanded the exemptions to include tablets and other devices like smart watches.
What about my contract?
So does this mean that I can just skip out on my carrier contract and my expensive cell phone bill? In a word, No. While unlocking does allow you to change carriers, it doesn't remove your contractual obligations. In most cases the carriers heavily subsidize the price of a phone and then use your monthly bill to recoup the costs over 2 years.
You may be wondering, well what is to stop someone from just unlocking your AT&T phone and moving to T-Mobile without paying off your contract? What is the likelihood that AT&T is going to try and repossess the phone? The answer is that they probably won’t try to repossess the phone, but after a few weeks (or months) they will blacklist the device.
Blacklisting basically blocks the phone at the network level based on its IMEI number, which means that even an unlocked phone can be blacklisted. The blacklists are shared across different carriers specifically to prevent this type of contract evasion. Without access to the cell phone networks your smartphone will basically turn into small tablet that can only access wifi.
If you have already paid off your contract (or if you paid an early termination fee) then you can unlock your phone without worrying about blacklisting. Note, that this is one of the reasons that carriers push “free upgrades” to a new phone when a contract is up. They want to make sure they keep you on the hook for another 2 years.
Does that mean my phone will be blacklisted if it is unlocked while under contract?
As long as you continue to pay your bill then you are still honoring your contract and there will be no grounds for blacklisting your phone. If you are still under contract but you just want to unlock the phone to use a different SIM card when you travel, you can do so without worrying about being blacklisted. Your carrier generally can’t tell when your phone has been unlocked. On the other hand they can definitely tell if you stop paying your bill.
So there you have it, unlocking your phone is now totally legal. While it won’t help you get out of a contract, you can still take advantage of it for any of the myriad of legitimate situations where it would be beneficial. For example:
- Moving to a cheaper carrier but keeping your existing phone after your contract is up
- Avoiding onerous and confusing roaming fees while traveling
- Using a second hand phone that you purchased or received as a gift
- Reusing an old phone as a backup with a prepaid carrier