White House Statement on Cell Phone Unlocking: A First Step Toward DMCA Reform?

Yesterday, the White House officially responded to the online petition to “Make Unlocking Cell Phones Legal,” which garnered more than 100,000 signatures in under 30 days. The Administration’s headline was emphatic: “It’s Time to Legalize Cell Phone Unlocking.” The tech press heralded this significant but symbolic first step in addressing some of the most egregious shortcomings of the Digital Millennium Copyright Act (DMCA). I hope the White House’s response signals a new chapter in the struggle to regain the freedom to innovate, research, create, and tinker. Last week, I discussed the petition and its context with Derek Khanna, who has been a champion of the cause. You can watch the video here:

As Derek pointed out, this battle is connected to a much larger policy problem: the DMCA bans many practices that are good for society–and without clear counterbalancing benefits. Reading the White House statement, it is hard to tell whether the Administration appreciates this fact.

First, some history. The DMCA passed in 1998, under the faulty assumption that it would protect against piracy. The Act put significant restrictions on the ability to study digital technologies. It also created a process by which, every three years, the Copyright Office (an arm of the Library of Congress) would review requests for exemptions to the new restrictions.

As I observed in 2003, “It is abundantly clear by now that the DMCA has had a chilling effect on legitimate research related to access control technologies.” Yet requests by for research exemptions have been routinely denied, or at best arbitrarily narrowed by the Copyright Office to such an extent that they are rendered useless—even though DMCA threats have been used to silence researchers, including me. For example, in 2001 our team’s study of CD copy protection technologies could not be published as planned because of DMCA threats from the recording industry—the same people who had invited us to study the technologies.

I am not overstating the case to say that the research implicated by the DMCA is critical to democracy. In 2003, Diebold threatened to sue students for researching their electronic voting machines. Other vendors followed suit in the years that followed. When my team performed research on widely-used voting machines, we feared a DMCA lawsuit. We knew we were in the right legally and would ultimately win a suit—but we also knew by experience how much damage a “strategic” DMCA threat could do. Ultimately we published a study revealing serious vulnerabilities which played a role—along with the efforts of many others across the country—in changing the national debate about electronic voting technology.

Academic research is far from the only valuable activity that is put at risk by the DMCA. As Derek pointed out, the exemptions for technological accessibility for persons with disabilities are narrow and should never have been necessary in the first place. More generally, the right to examine and tinker with devices that you own (or to learn from someone else’s experience) should be presumptively legal. Copyright owners can and should retain the right to stop actual copyright infringement. The DMCA, on the other hand, forecloses an untold number of potential non-infringing innovations.

The deep perversity of the DMCA is that it has failed to achieve its stated purpose–preventing unauthorized redistribution of copyrighted works. Technological protection measures do not deter true criminals, but the DMCA criminalizes citizens who seek to innovate. As copy protection technologies continue to fade away, the law that was intended to bolster them (but has failed to do so) will live on, zombie-like, to intimidate innovators.

The White House’s response is significant. As it states, permitting cell phone “unlocking” is:

…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.

Recognizing this common sense approach is important, but equally important is how the government implements this common sense. The White House’s response seems to delegate this task to the Federal Communications Commission. Perhaps the FCC will achieve something on this front, and perhaps it will not. But the FCC’s role is inherently limited, because the FCC does not have the power to overrule the Copyright Office’s decision, nor to overrule the provisions Congress wrote into the DMCA. The only way to really fix this mess—the common-sense solution—is to fix the DMCA.