Pat Pilcher: Unlocking smartphones now illegal in US

Every once and a while a law is passed that really gives you pause for thought. One such example is an inexplicable piece of legislation about to come into force in the US that will see smartphone users unlocking their phones with the permission of their mobile service provider running afoul of the law.

This bizarre situation came about because the US government applied the same sort of loopy wisdom that you'd associate with walkshorts, cardigans and the public sector.

In a nutshell they worked out that smartphones could contravene the Digital Millennium Copyright Act. Bizarrely this then resulted in laws being drafted so that while it is legal to jailbreak smartphones, it will become illegal to jailbreak tablets and even more annoyingly, illegal to unlock phones without permission from the telco you bought your phone from.

A 3-month hiatus was put in place before the new laws came into play and this expired on the 26th of January.

Whilst most telcos would argue that there is a solid commercial reason for this legislation, in that they're wanting to ensure that the cost of a subsidised and heavily discounted handset is recovered from the duration of the customers mobile contract and don't want the customer exiting their plan prematurely.

If the motivations for telcos wanting to lock handsets are understandable, (and let's face it, they're here to make a buck after all), there are many reasons why passing laws to enforce this is potentially a brain dead move:

#1 Its bad for competition: Most telcos if asked by a customer "can please I unlock my cellphone and replace your SIM with one from [insert competitor name here]" are going to give a pretty short and emphatic "no" as an answer - after all wouldn't you say no if you were a telco? Over the short term this is a pretty reasonable response purely for commercial reasons, but longer term, I wonder just how much competition will ultimately be snuffed out?

#2 That needs to be a law??: Even though the commercial underpinnings of locking a handset are arguably valid, what business does a government have legislating something that is clearly a commercial rather than legal issue?

#3 It won't stop anything: Making it illegal to unlock a phone without a telcos permission will simply drive phone unlocking underground, or even create a black market in unlocked phones. Remember how the prohibition failed to stop boozing and created bootlegger gangsters? History could be set to repeat with phones instead of liquor.

#4 Do we really need to criminalise phone owners??: Most worrying of all, this law creates yet another thing for already overburdened US police to throw limited resources at as they investigate and arrest people for unlocking phones. Do we really need to make kids trying save a few bucks into criminals? Shouldn't already scarce police resources be focused on real crime such as arresting rapists and murderers?

#5 Technology renders this law obsolete: Dual SIM phones are already easily obtainable from parallel importers and/or online stores. There's little to nothing stopping people from using these with a SIMs from competing telcos in order to get a better deal. Funnily enough doing this pretty much invalidates the rationale behind locking phones in the first place.

So there you have it. it'd be fair to argue that there is a high probability this law is going to be unenforceable. The likelihood is high that it'll also be flouted by a growing number of people in the US, so why legislate it?

Thankfully sanity has thus far prevailed in New Zealand. Even though Telecom, Vodafone and 2degrees don't lock handsets (only Skinny choose to lock their phones and you can pay for an unlock code after 9 months), there is no law (yet) making it potentially illegal to unlock or jailbreak ones phone in New Zilland.

Thank goodness for that!