This isn't a debate about big business vs. little consumers. It's a story of crony-capitalism. (In fact, T-Mobile was asking their customers to unlock their phones until Saturday when this became illegal for new phones, as you can see in this image).



THE DMCA vs. YOUR PHONE



The DMCA was initially set up to help stop piracy. So what, you might wonder, does piracy have to do with unlocking your phone? Very little. The law made it illegal to use technology to circumvent digital protection technology. The Librarian of Congress, who has power to grant exceptions to the law, has kept seemingly harmless activities illegal. For example, a court can shut down a blog or website simply for discussing the techniques and procedures on how to back up a DVD to your home PC (and they have done so). This is remarkable considering that in the Pentagon Papers case the Supreme Court ruled that a court cannot order an injunction to prevent the release of classified documents unless under extraordinary circumstances in which the government can demonstrate "grave and irreparable danger" to the public interest. So, releasing classified documents: allowed. But discussing how to back-up DVDs and unlocking phones: illegal.

Some have argued that prohibiting unlocking phones is important to enforce contract law. But the DMCA is concerned with protecting copyrights. It has nothing to do with enforcing contract law. The law is being co-opted to serve the interests of one or two phone companies. And the contract argument is specious, even if you unlock your phone, you are still under contract with your cellphone provider, unlocking your phone has nothing to do with contract law and everything to do with basic property rights.

We must ask ourselves: "What specific limitations upon our personal freedom and liberty are we prepared to accept in the name of achieving the goal of protecting intellectual property?" Some limitations may be sound, and Congress should debate them on the record. Obviously, we do not have the right to copy books, movies and music and sell them. But other restrictions are invasive and have nothing to do with protecting intellectual property (like unlocking and jail-breaking your phone or adaptive technology for the blind to read). Restrictions upon the use of technology should receive strict legislative scrutiny because of its impact upon innovation and our personal freedom.

Congress's inaction in the face of the decision by the Librarian of Congress represents a dereliction of duty. It should pass a new law codifying that adaptive technology for the blind, backing up DVD's to your computer, and unlocking and jail breaking your phone are lawful activities regardless of the decisions of the Librarian of Congress.

Instead, Washington has removed a business model, hurt consumers and chosen winners and losers in a dynamic and emerging market. These decisions have a real impact on real people without the resources to hire lobbyists. Sina Khanifar (@sinak) is one of them, and he has even drafted a White House petition to reverse the ruling by the Librarian of Congress. So far the petition has over 61,000 signatories.