Nov 20, 2020 7:00 AM

The US Could Soon Ban the Selling of Carrier-Locked Phones

Carrier lock-in was recently prohibited in the UK. If it finally happens here next year too, consumer advocates say the move would give users more flexibility and choice.

two women on their cell phones in front of a boarded up Verizon store

Sometimes, even when you own a device, you’re still not fully in control of it.

Buy a smartphone from one of the big US carriers, and it typically comes locked to that carrier’s network. If you want to take that phone and use it on a different carrier’s network, the process of making that happen can be a real pain. Carriers in the US are required to let you switch networks, and each carrier has its own protocol for “unlocking” your phone to make that possible. Some processes are more cumbersome than others, but in almost all cases, it’s a big annoyance. Luckily, it’s an annoyance that may soon be rendered obsolete.

Locking phones was also common in the UK until very recently. But in late October, UK communications regulator Ofcom announced a ban on locked phones, set to take effect by 2021. The United Kingdom joins countries like Singapore and Canada that have also forbidden the practice of selling locked phones. This step is a win for consumer advocates, who have long contended that mobile devices should come unlocked by default. They argue that selling phones unlocked makes it far easier for consumers to switch networks, resell their phones, or even just give them to someone else.

“I can’t think of anything more customer-hostile than locking a phone to a particular carrier,” says Kyle Wiens, CEO of the right-to-repair advocacy group iFixit (and an occasional WIRED contributor). “It would be like having cars that only work on certain toll roads. No one would put up with that, and we shouldn’t put up with locked phones.”

In the US, a complicated combination of corporate interests and pre-smartphone era legislation has resulted in more than two decades of back and forth about the legality of phone locking. It’s looking like that battle could ramp up again next year. The transition to a Biden administration could shake up the regulatory body that governs these rules. The timing also coincides with a congressional proceeding that takes place every three years to determine what tweaks should be made to digital rights laws. 2021 could be the year of the truly unlocked phone. For some activists, it’s a glimmer of light at the end of a very long tunnel.

Locked Up

Cell phone unlocking has had a twisty history in the US. Since the early 2000s, Congress has alternately scorned and encouraged the practice, calling it everything from “allowable” and “exempted” to “illegal” and “prohibited.” The regulation central to the debate is an act President Clinton signed into law in 1998. The Digital Millennium Copyright Act (commonly known as the DMCA) aimed to dictate the rules around digital copyrights on the blossoming internet. One hotly disputed portion of the law is Section 1201, which governs the “circumvention of copyright protection systems.” In normal speak, that means that companies can use software to implement digital locks that keep people from tinkering with their creations.

Section 1201 was mostly designed to protect publishers, who were aching to prevent illegal copying of things like movies, ebooks, and video games. However, along with other device manufacturers, wireless carriers have argued that the digital locks they place on devices, such as the ones that keep cell phones bound to a particular network, are protected by Section 1201 of the DMCA. Unlocking your phone, so the argument goes, would be “circumventing” the manufacturer’s protection measures and tantamount to a copyright violation. But advocates say that argument hasn’t aged well.

“It was passed at a time when things looked really, really different in the consumer electronics market,” says Kerry Maeve Sheehan, a repair policy lead at iFixit. “It was passed really to address issues like DVD piracy, and not to address issues like software-enabled refrigerators or internet-connected home systems. Unfortunately, the place we find ourselves in is a world where software is in everything, and software is covered by copyright law.”

In 2015, the Unlocking Consumer Choice and Wireless Competition Act made it legal for customers to unlock phones without penalty. Carriers aren’t required to make phones unlocked by default, but they do have to give customers a way to unlock them. Technically, the process is free in the US—as long as you have lots of time and patience.

Pain Points

Some carriers make it relatively simple to unlock devices. Verizon says that the majority of its devices automatically unlock by default after 60 days. AT&T, on the other hand, has a checklist of requirements that customers have to meet before a phone can be unlocked. Unlocking a T-Mobile device requires its own app.

Calls and emails to the major US carriers asking for comment went unanswered.

These restrictions don’t present much of a struggle for most people. But even a small hurdle or waiting period puts the onus of unlocking on the customer rather than on the company. That added friction makes it more of a pain to sell or gift a phone down the line.

“It’s just a massive pain for consumers,” Wiens says, adding, “There’s a really substantial cost, to the tune of hundreds of millions of dollars, to American consumers by having this default in place.”

On resell markets like Swappa, locked phones tend to sell for considerably less than unlocked phones. Customers have bought phones from second-hand stores like Goodwill, only to discover that they’re locked and basically unusable.

Economics aside, there’s an environmental impact as well. The greenest solution for dealing with an old phone is for the device to be resold and passed along to a new owner. E-waste is a massive, growing problem and device recycling is still a resource-intensive process. Recyclers have to decide whether it’s more cost effective to just scrap and recycle a device than to resell it. If there’s less demand for a locked phone (because fewer people can use it) then it’s worth less. Every additional complication like this that lowers a phone’s resale value makes it less likely that it will be reused.

“If we can force more phones to be unlocked, that will potentially expand the life of these phones by years,” Wiens says. “Because it will push it into the range of economic viability for recyclers to fix them and then resell them in developing markets.”

The Road Ahead

Considering all that, how could carriers be forced to provide phones that are unlocked by default? There are a couple of promising avenues, though neither are a given.

“It’s a component of this broader question about net neutrality,” says Mitch Stoltz, a senior staff attorney with the nonprofit Electronic Frontier Foundation. “A broad definition of net neutrality includes carriers giving their customers the freedom to use the equipment that they want to use as well as access the data and websites that they want to access. I absolutely expect that to be on the agenda in the coming year.”

The “agenda” here meaning something to be decided by a regulating body. In the UK, the regulator Ofcom made that call. The US Ofcom equivalent is the Federal Communications Commission. Under its current leadership of Trump appointee Ajit Pai, the FCC has been staunchly pro-business, passing legislation like the repeal of net neutrality at the behest of companies like AT&T.

“Getting this done in an Ajit Pai FCC would be extremely difficult and very unlikely, given how friendly that FCC has been toward private companies and broadband providers,” Sheehan says. “Whether or not that could happen in a Biden administration, we don’t know. I think it would be much more possible.”

Another route would be to take the problem back to its source: Section 1201 itself. Every three years, the US Library of Congress and Copyright Office hold a rulemaking proceeding that takes public comment. It's a chance for advocates to make their case for amending Section 1201, assuming they can afford the legal fees necessitated by such an involved, drawn out process. It’s a less overtly political process, as the key decisionmakers at the two institutions don’t come and go with each presidential administration like they usually do at the FCC. These sessions have already yielded positive outcomes for fans of repairability, like an exemption that took effect in 2016 that made it legal to hack car computers and other devices.

The next proceeding is currently underway. If citizens want to urge the government to amend Section 1201, the first round of comments are required to be in by December 14. Responses and additional proposals will go back and forth through the spring of 2021, until the Copyright Office ultimately decides which changes to implement. Both Sheehan and Wiens are working with other advocates to make their case for a future of unlockability.

“It’s certainly possible,” Sheehan says. “It’s just a question of political will. If enough folks really care about this issue, then I think that changes the calculus in favor of passing something like this.”

WIRED COUPONS