Should You Go to Jail for Unlocking Your Phone?

Derek Khanna on copyright, the DMCA, and the terrible law against freeing your cellphone

"Who owns your phone at the end of the day?" asks Derek Khanna, a visiting fellow at Yale Law and former staff member at the Republican Study Committee.

Last fall, Khanna earned notoriety - and a pink slip - for a public memo urging GOP members of Congress to rethink their stance on copyright law.

More recently, in a column for The Atlantic, Khanna blasted a new ruling that criminalizes the unlocking of cellphones under the Digital Millenium Copyright Act (DMCA). Unlocking the phone simply means that a person could use a phone designed for one carrier on another carrier, assuming they had switched his plan. In addition to civil penalties, breaking this law could land you in prison for up to five years and force you to pay a fine of up to $500,000.

"In 1998 a poorly written statute, the DMCA, was passed and it prohibited a wide swath of commonly used technology in the name of defending copyright," Khanna explains. "If this is allowed to stand, then the answer is you don't own your phone."

A White House petition to change the law recently reached the 100,000 signature threshold, which means the Obama administration will have to give an opinion on the matter.

Khanna sat down with Reason's Nick Gillespie to discuss the unlocking your cellphone, the flaws in the DMCA, and why he was fired from the Republican Study Committee after writing a paper condemning current copyright law.

Follow Derek Khanna on Twitter here.

Follow Nick Gillespie on Twitter here.

About 17 minutes.

Produced by Meredith Bragg. Shot by Amanda Winkler and Meredith Bragg.

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  • Paul.||

    Never underestimate the government's ability to ban or regulate something through sheer force of will.

    When I get to use that quote three times in a day, it's... not a good day.

  • Coeus||

    Ready for the 3d printers? They are.

  • Chance J. Alaimo||

    my classmate's mother makes $65 every hour on the computer. She has been fired for seven months but last month her pay was $20843 just working on the computer for a few hours. Read more on this site...

  • John||

    If the Republicans were not the stupid party, they would go after copyright bullshit like this and doing something about the 21 year old drinking age. The problem of course is that I am not sure generation retard would stop voting Democrat even if the Republicans did these things. But even if they didn't, Republicans would at least be doing something right for a change.

  • BakedPenguin||

    They're afraid of losing Florida. Disney would be up in their shit if they even breathed a word of dissent.

  • John||

    But could Disney actually get them to lose Florida?

  • BakedPenguin||

    Florida is right about 50/50 R/D right now, depending on who shows up at the polls. Disney and Universal employ about 84,000 people in Central Florida. I don't think they would be shy about hinting about layoffs should the dastardly R's pass the law "stripping Disney of its Constitutionally protected copyrights". Most people agree with the basic idea of copyright, so it's much harder to argue against than a straight subsidy.

    If Obama continues to fuck up the economy, and a seriously backlash develops against him, that might be a different story, since I think you're absolutely right about the rest of your argument. As it is now, you'd be swimming upstream to sell it to them on a national level when they think it might hand the D's a massive swing state.

  • JeremyR||

    Obama is like FDR - he can screw up the economy all he wants, he won't get any blame for it.

    Not just the media, from the bottom too. The minute Obama was president, there were jokes about "Obama's American" being applied to every minor incident or problem, essentially making it an internet meme, and at the same time, making any legitimate criticism of Obama a joke as well.

  • grey||

    Pre-Mature Nobel Peace Prize anyone?

  • Caleb Turberville||

    The Florida legislature is bought and paid for by Disney dollars!

  • Mr Whipple||

    You need an E-coupon to ride that.

  • ||

    Actually the Dems have been very good at cutting off progress made by conservative groups at the knees. For example: The Log Cabin Republicans had basically litigated Don't Ask Don't Tell out of existence before Obama made an 11th hour push so that my liberal friends could run around fawning over how great he is.

    It's a brilliant strategy in that you can milk any given problem for donations until it's so safe that even Republicans are getting on board.

  • JohnD||

    I despise the Dems and I have given up on the Republicans. That is one reason I come to this site as often as I do. But I have to tell you, I'm not overly impressed with what seems to be some of the tenets the Libertarian philosophy.

    Go ahead and flame me, but be careful you don't lose a potential convert.

  • SIV||

    "Should You Go to Jail for Unlocking Your Phone?

    I suppose Nick's answer would depend on whether he is siding with Janet Napolitano that day.

  • Caleb Turberville||

    Cosmotarian Nick Gillespie hates intellectual property rights? Boy, am I surprised!

    (Am I doing this right?)

  • $park¥||

    That was pretty close to SIV, so yes.

  • Caleb Turberville||

    Well, it's an honor just to be close.

  • ||

    Now post some old pictures of chicks in ugly underwear. Go!

  • ||

    Oh, I can do this too. *Ahem*

    It's all due to cosmotarization of the libertarian movement. Beware the secret socialists! They just don't appreciate honest culture. Like ancient underwear, for example. Why don't more women wear these? Look at this sexy number! Damned cosmos.


    How was that?

  • Paul.||

    The hecker's veto still (for the most part) requires government.

    If I demand that a poster be taken off a subway wall because it hurts my feelers, who am I demanding take down the poster, and by whose authority is the poster removed?

  • sarcasmic||

    It is already established that your body is not your own property. Get caught putting an unapproved chemical into your body and tell me who owns it.

    What's so special about your phone?

  • Almanian!||

    All your things are belong to us.

  • Paul.||

    What's so special about your phone?

    Steve fucking Jobs made it.

    Well, not MY phone, but if you've ever met an Apple fanatic...

  • Mr Whipple||

    I use an original RAZR. Best phone ever made. Dime a dozen on ebay and Amazon. I have a mobile 4g hotspot with a SIM card for my Android tablet and laptop. I'm about as free as possible. They can take their smartphones and stick them where the sun don't shine.

  • Otisjay||

    My RAZR Maxx says "Hi Grandpa!"

  • Mr Whipple||

    90% of the software I use is GNU or some form of free/open source. Sometime this year there will be a Mozilla smartphone OS and possibly an actual working Ubuntu OS. Most of the torrent stuff is available through untraceable proxies and tunnels and VPNs like I2P. They are fighting a losing battle. The more they try to stop people, the more people will find a way around it. If you are not using Tor, you are behind the curve. I can even get Tor through my smartphone.

    They are getting desperate. I wouldn't be surprised if these bastards tried to get the death penalty for the people that they actually catch.

  • Mr Whipple||

    Almost forgot

    Handbrake, bitchez.

  • Mr Whipple||

  • Paul.||

    All of what you say is true. Which is why the penalties are getting more harsh.

    "We can't stop you from doing x or y, but if we catch you, you're either going to jail for a really long time, or we'll hit you with such a big fine, your children's children won't afford to be able to pay attention."

    Just the fear of RIAA lawsuits made me very wary of where I downloaded MP3s from, or how and when and for what I used a torrent app.

    They know they're fighting a losing battle technologically, which is why tha pass these draconian umbrella laws.

    They catch a small percentage of the people violating-- usually the worst violators because they're easy to catch-- and they hang their rotting corpse from a gallows outside of town.

    Beleive it or not, it's actually a reasonably effective way of tempering the behavior of most people.

  • Mr Whipple||

    Silk Road is gaining in popularity. It's now estimated that they do $1.2 million in transactions/month. Yes, that's month. Bitcoins are climbing everyday. They are up to $30. Two months ago they were $12. The IMF has released a paper on them.

    All I can say is, enjoy the Internet while you can.

  • $park¥||

    They are getting desperate. I wouldn't be surprised if these bastards tried to get the death penalty for the people that they actually catch.

    Death penalty for theft? That's unpossible.

  • EDG reppin' LBC||

    There is no hole deep enough, or dark enough for the vile scum that would unlock a cell phone.

  • NeonCat||

    Osama Bin Laden never unlocked a phone. Adolf Hitler never unlocked a phone.

    When you unlock a phone, you are literally worse than OBL or AH.

  • wwhorton||

    Well, it kind of isn't your phone, not if you bought it as part of a contract. It's more like a lease-to-own program. You get a $700 phone for $100 because you've agreed to pay for service for 2 years. So, it's like you're making a down payment of $100 and then spreading the rest out over the life of the contract. In that respect, I get why phone companies get edgy about jailbreaking.

    On the other hand, and this is what "piracy" teaches us, if you give consumers a reasonable way to get legal, they will. You wouldn't have to worry about this sort of crap if you offered the option to buy out the phone at FMV at the time of purchase, minus what you've already paid. But the more you try to treat consumers like criminals, the more they'll behave like criminals, and you can pass whatever laws you want, but you'll never catch them all.

  • pmains||

    There are plenty of "no-contract" phones as well, though. If you sign up with Virgin Mobile, Boost Mobile, Net10 or whatever, you don't sign a contract. Why should I have to get permission from boost mobile to unlock and flash the Galaxy SII I bought from them and put the phone on a different carrier?

  • ||

    If I just buy the phone without the contract, I still have to pay for voice and data, I'm just doing it on a month to month basis. And it's not like they offer lower prices for those services if you do that, so how are you spreading the cost of the phone over the life of the contract?

  • pmains||

    T-Mobile does offer lower prices if you buy the phone. You buy it outright, then put it on their "Smart Go" network for $45/month instead of $80/month.

    Sprint, on the other hand, is psychotic. They have Boost Mobile and Virgin Mobile, but they consider transferring a Sprint phone that you buy outright to one of their bargain brands as "fraud." You still receive a $10 discount by putting that phone on their "Sprint as you Go" plan.

  • SKR||

    jailbreaking is allowed it's carrier unlocking that is at issue.

  • Alan||

    Something like 98% of profits from copyrighted materials are made in the first 6 years.

    I've worked on numerous buildings around the world, and they are still in use, but I'm not getting royalties for the wiring I've run - and no heirs will be able to milk that for three generations.

    Copyright terms should be reduced to no more than 10 years, with one 10 year extension if it is publicly registered. We are entering the most dynamic period in human history, a time when information may need to flow freely if the human race is to outrun extinction, and we've got these bastards who want to shut down humanity for centuries so they can profit from their monopoly on thought.

  • grey||

    So if I write a novel, I should own it for 10 years, with maybe a 10 year extension?

  • TomG||

    You don't own what you wrote. Society grants you a temporary monopoly on order to encourage you to publish and let you make a living. Patents and copyrights are like taxes, not like property rights.

  • Bill Dalasio||

    Fair enough. So, how about the first time you sell it, it now belongs to the purchaser?

  • grey||

    That's an accurate distinction, except maybe it's Government grants you a temporary monopoly... Still, I wonder why we write laws that say you have copyright that protects you for XX years for a photo or novel, but because it's beneficial to the collective, we think your monopoly on an invention should be less than XX, and by the way, if its medical then it's even few years.

    I really don't have well formed opinions on copyright and patents, it all raises more questions than answers for me insofar as connecting them to libertarian principals.

  • BlogimiDei||

    "bastards who want to shut down humanity for centuries so they can profit from their monopoly on thought."

    Brave New 1984?

  • ΘJΘʃ de águila||

    The return of the "Carter Phone".

  • TomG||

    If you are on a contract, you don't own your phone. But if you make that choice, it's your own fault. I haven't owned a locked phone in ten years.

  • Thomas O.||

    Good God, I hope not. The business my wife and I work at deals in HUNDREDS of phones that are unlocked. If God forbid we're shut down over this, BOTH of us would be out of a job. O_O

  • grey||

    I think it may be easier to list the things that won't send us to jail.

  • Sonderegger||

    erson could use a phone designed for one carrier on another carrier, assuming they had switched his plan. In addition to civil penalties, breaking this law could land you in prison for up to five years and force you to pay a fine of up to $500,000.

    "In 1998 a poorly written statute, the DMCA, was passed and it prohibited a wide swath of commonly used technology in the name of defending copyright," Khanna explains. "If this is allowed to stand, then the answer is you don't own your phone."

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