New US phone law a danger to free speech
Brian Pellot: New US phone law a danger to free speech rights
26 Jan 13

Some people collect stamps, others collect SIM cards. As stamps facilitate  postal communication, so SIM cards allow people to reconnect with local friends at local rates the moment their planes hit the ground.

Starting today, nomadic Americans and those who balk at signing the market standard two-year contract will find choosing a new carrier or popping in a new SIM card more difficult and, in many cases, illegal.

The new federal policy makes unlocking most newly purchased phones illegal, even after initial contracts have expired.  “Unlocking” phones — removing the security features that bind them to a single network — was formerly allowed as an exemption to the Digital Millenium Copyright Act (DMCA). The US Librarian of Congress removed this exemption in October, giving customers an additional 90 days to buy and unlock new phones before the policy went into effect.

Mobile phones in the US are typically bought at reduced rates, with high monthly fees spread over two-year contracts making up the price difference. Apple fans can get an iPhone 4 from the Apple store for free with a new two-year wireless service contract. The price for an unlocked contract-free iPhone is $450. This up-front price difference, prohibitive for most consumers, is designed to lock them into one service provider for two years. With new unlocking restrictions in place, this commitment could drag on indefinitely if consumers wish to continue using the same phone beyond the initial two-year contract.

With SIM-card swapping now illegal on new phones, shop and kiosks that once offered to unlock or jailbreak them at a small fee will likely face new legal scrutiny. In many cases, users will be forced to sacrifice their privacy, anonymity, and a range of other freedoms if they wish to stay within the bounds of the law. Locking consumers into such contracts by making it illegal to unlock new phones represents a direct curb on their free expression.

Government agencies in the US have repeatedly attempted to use mobile phone records to track user locations without warrant. The government also engages in warrantless wiretapping. Just last month the Senate overwhelmingly voted to extend the FISA Amendments Act by five years allowing the government to continue monitoring Americans’ communications abroad. Mobile service providers responded to 1.3 million government demands for subscriber information in the US in 2011. Today’s new federal policy will make switching carriers more difficult, and as a result make the government’s ability to track users that much easier.

Fear that the authorities are listening in produces a chilling effect on speech, one that could be further accentuated by service provider attempts to do away with net neutrality. Verizon, for example, has been vocal in its opposition to the US Federal Communications Commission’s Open Internet Rules, claiming these rules violate the company’s First Amendment rights.

If Verizon is successful in its challenge to the FCC and gains the right to block or slow access to websites of its choosing, many users will inevitably wish to change provider. If those users bought their phones after today’s new policy comes into effect, the legal opt-out will mean shelling out hundreds of dollars for a new unlocked smartphone or signing a new two-year contract with a different provider.

Also from today, if Americans buy certain mobile phones in the US and leave the country, they will face exorbitant roaming charges when using their locked phones abroad. If AT&T’s $2 per minute or $20 per megabyte rates aren’t a curb on free speech, I don’t know what is.

In an an email to TechNewsDaily, Christopher S. Reed from the US Copyright Office noted that “only a consumer, who is also the owner of the copy of software on the handset under the law, may unlock the handset”. TheNextWeb interprets this to mean that phones can be unlocked only if Apple, Google and Microsoft, the “owners” of the world’s most popular operating systems, agree to do so.

A petition, which has received 10,000 signatures since its creation yesterday, asks the White House to ask the Library of Congress to rescind its decision or champion a bill that would make unlocking mobile phones permanently legal. Criminalising communication by making it financially prohibitive and erecting barriers to privacy and anonymity violates our fundamental right to free expression. Given this decision’s implications for user’s basic First Amendment rights, this policy should be immediately rescinded.

By Brian Pellot

Brian Pellot is Director of Global Strategy and Religious Freedom Editor @RNS. Formerly @indexcensorship & @onfreespeech.