House Passes Cell Phone Unlocking Bill with Anti-Consumer Poison Pill

Yesterday, the House passed the Unlocking Consumer Choice and Wireless Competition Act 295 to 114.

200 Republicans and 95 Democrats voted for it. 94 Democrats and 20 Republicans voted against it. The strange bedfellows opposition consisted of many of the most liberal Democrats and the most conservative Republicans.

The bill legalizes cell-phone unlocking, making it easier for consumers to switch providers without buying a new phone…but with a catch.

After the bill already passed Committee but before it came to a vote, House Judiciary Committee Chairman Bob Goodlatte inserted a provision that would keep the ban on bulk unlocking, as the CTIA (the lobbying association for cell-phone service providers) wanted.

Because of this, groups like the Electronic Frontier Foundation and Public Knowledge withdrew their support.

EFF argued that, with the new provision, the costs for users now outweigh the benefits:

For more than a year, users have been up in arms about a change in the law that cast a legal cloud over the basic and common practice of unlocking your cell phone. That cloud arose in a somewhat convoluted fashion but here’s the short version: Unlocking nominally requires interfering with software on your phone.  That, in turn, may mean violating a provision in the Digital Millennium Copyright Act (DMCA) that makes it illegal to “circumvent” technical measures designed to control access to copyrighted content, even if your purpose is otherwise perfectly legal. As we’ve noted repeatedly, this provision (Section 1201) has caused enormous collateral damage with little corollary benefit.

It's not at all clear that Section 1201 properly applies to unlocking, but as long as there is uncertainty, there is risk. Until recently, however, that risk was minimized thanks to a legal exception granted by the Librarian of Congress. Every three years, the Librarian and the Copyright Office review possible exemptions to 1201, that is, circumstances where users will be allowed to circumvent technical protections without running afoul of the law. But the exemptions must be proposed and considered anew each time, via cumbersome and expensive process.

In 2012, the Librarian of Congress ruled that phone unlocking would no longer be whitelisted, and set the ruling to take effect in 2013.  That caused a huge public outcry, with good reason. Section 1201 was supposed to inhibit copyright infringement, not stop people from switching phone carriers (or jailbreaking their devices, or remixing videos, or sharing information about security flaws, all of which Section 1201 also inhibits). Phone locking is designed to protect a business model, not a copyright.

Congress, the White House, and the Federal Communications Commission have responded with a variety of proposals, including a deal brokered by the FCC requiring carriers to allow customers to unlock their phones when their contracts expire.
Which brings us to 2014. The bill set for a vote tomorrow builds on the FCC deal by making phone unlocking legal for end users and people who help them, at least until the next exemptions are decided. (That’s about a year and a half from now, if you’re counting.) A tiny and temporary fix, but better than nothing, right?

Wrong.  That’s because the latest version of the bill contains new language expressly excluding “bulk unlocking.” Bulk unlockers acquire phones from a variety of sources, unlock them, and then resell them. By expressly excluding them, this new legislation sends two dangerous signals: (1) that Congress is OK with using copyright as an excuse to inhibit certain business models, even if the business isn’t actually infringing anyone’s copyright; and (2) that Congress still doesn’t understand the collateral damage Section 1201 is causing. For example, bulk unlocking not only benefits consumers, it's good for the environment—unlocking allows re-use, and that means less electronic waste (our friends at iFixit have a great set of resources on that problem.)

[emphasis added] 

EFF offered Zoe Lofgren's Unlocking Technology Act, introduced last May, as an example of a bill that appropriately addresses the problem. Lofgren's bill has 7 co-sponsors: Democrats Anna Eshoo, Jared Polis, Pete DeFazio, Rush Holt, Steve Israel, and Sam Farr and Republican Tom Massie.
Rep. Jared Polis expressed a similar sentiment:

"The last-minute change that was made in this bill… puts a real poison pill in this bill for consumer advocates such as myself," Polis said. "Many consumers won't be unlocking their phones themselves. There needs to be a market in unlocked phones."

Zoe Lofgren and Anna Eshoo, Democrats from Silicon Valley, organized last-minute opposition against the bill. As I noted earlier, the bill split the Democratic caucus in half. 

Here are the 94 Democrats who opposed the bill:

Karen Bass (CA-37)
Sanford Bishop (GA-02)
Earl Blumenauer (OR-03)
Suzanne Bonamici (OR-01)
Bob Brady (PA-01)
Mike Capuano (MA-07)
John Carney (DE)
David Cicilline (RI-01)
Katherine Clark (MA-05)
James Clyburn (SC-06)
Joe Courtney (CT-02)
Elijah Cummings (MD-07)
Danny Davis (IL-07)
Pete DeFazio (OR-04)
Diana DeGette (CO-01)
John Delaney (MD-06)
Lloyd Doggett (TX-35)
Mike Doyle (PA-14)
Donna Edwards (MD-04)
Keith Ellison (MN-05)
Bill Enyart (IL-12)
Anna Eshoo (CA-18)
Elizabeth Esty (CT-05)
Sam Farr (CA-20)
Chaka Fattah (PA-02)
Bill Foster (IL-11)
Tulsi Gabbard (HI-02)
John Garamendi (CA-03)
Alan Grayson (FL-09)
Al Green (TX-09)
Gene Green (TX-29)
Raul Grijalva (AZ-03)
Janice Hahn (CA-44)
Jim Himes (CT-04)
Rush Holt (NJ-12)
Mike Honda (CA-17)
Eddie Johnson (TX-30)
William Keating (MA-09)
Robin Kelly (IL-02)
Joseph P. Kennedy III (MA-04)
Dan Kildee (MI-5)
Anne Kuster (NH-02)
Jim Langevin (RI-02)
Barbara Lee (CA-13)
Dan Lipinski (IL-03)
David Loebsack (IA-02)
Zoe Lofgren (CA-19)
Alan Lowenthal (CA-47)
Nita Lowey (NY-17)
Ben Luján (NM-03)
Stephen Lynch (MA-08)
Carolyn Maloney (NY-12)
Doris Matsui (CA-06)
Betty McCollum (MN-04)
Jim McDermott (WA-07)
Jim McGovern (MA-02)
Jerry McNerney (CA-09)
Grace Meng (NY-06)
George Miller (CA-11)
Gwen Moore (WI-04)
Jim Moran (VA-08)
Grace Napolitano (CA-32)
Richard Neal (MA-01)
Gloria Negrete McLeod (CA-35)
Beto O'Rourke (TX-16)
Donald Payne, Jr. (NJ-10)
Nancy Pelosi (CA-12)
Chellie Pingree (ME-01)
Mark Pocan (WI-02)
Jared Polis (CO-02)
David Price (NC-04)
Mike Quigley (IL-05)
Charlie Rangel (NY-13)
Linda Sánchez (CA-38)
Loretta Sanchez (CA-46)
Carol Shea-Porter (NH-01)
Brad Sherman (CA-30)
Louise Slaughter (NY-25)
Jackie Speier (CA-14)
Eric Swalwell (CA-15)
Mark Takano (CA-41)
Bennie Thompson (MS-02)
Mike Thompson (CA-05)
John Tierney (MA-06)
Dina Titus (NV-01)
Paul Tonko (NY-20)
Niki Tsongas (MA-03)
Chris Van Hollen (MD-08)
Marc Veasey (TX-33)
Peter Visclosky (IN-01)
Tim Walz (MN-01)
Maxine Waters (CA-43)
Peter Welch (VT)
John Yarmuth (KY-03)

Here are the 20 Republicans who opposed the bill:

Justin Amash (MI-03)
Michele Bachmann (MN-06)
Kerry Bentivolio (MI-11)
Jim Bridenstine (OK-01)
Paul Broun (GA-10)
Tom Cole (OK-04)
Jeff Duncan (SC-03)
Blake Farenthold (TX-27)
Chris Gibson (NY-19)
Tim Huelskamp (KS-01)
Walter Jones (NC-03)
Tom Massie (KY-04)
Mick Mulvaney (SC-05)
Scott Perry (PA-04)
Reid Ribble (WI-08)
Tom Rice (SC-07)
Dana Rohrabacher (CA-48)
Mark Sanford (SC-01)
Steve Stockman (TX-36)
Ted Yoho (FL-03)