Why you can go to jail for 5 years for unlocking your cellphone

Nick Gillespie of Reason says: "We have an interview with Derek Khanna, the guy who got bounced from the Republican Study Committee last fall for publishing (with full approval by his boss) a memo critical of current copyright law and one of the folks pushing a White House petition to allow users to legally unlock their cell phones."

"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.

Should You Go to Jail for Unlocking Your Phone?


  1. The French govt made NOT being able to unlock your phone illegal but in Communist Russia phones unlock YOU. Seriously though, illegal to stop you in France.

  2. Here’s what I don’t understand.  Where I live there are several phone stores – all of them Cricket stores – that advertise “WE FLASH PHONES.”  Is that the same thing as unlocking?  And if so, how is it a franchise store can advertise this illegal service?

    1. Possibly this refers to flashing a custom ROM / OS on, for example, an Android device. That alone is not the same as “unlocking” – the device will still only work with your original carrier.

  3. “a poorly written statute, the DMCA”
    I don’t think it’s poorly written at all. I have no doubts it’s doing exactly what’s intended. We’re just not the beneficiaries.

  4. I’m not entirely sure what the executive branch is supposed to do about the unlocking thing. Obama and co may heartily agree with the petitioners, but it really out of his hands.

    Also, if you “buy” a locked phone from a carrier, of course you don’t own it. My next phone will be unlocked, and I will not have a contract with my carrier. It’s a sucker’s game, and somehow* capitalism has provided a way out.

    * surprising considering how unlike a free market the cell service world is.

      1. So even best case, we get an empty promise that expires in a few years. Lovely. I’m going to continue to chalk this up to “Americans don’t understand the structure of the US government.”

      2. That’s kind of illegal.  You can “direct” your enforcement in a certain manner, but this is an impeachable offense, in theory.

        That said, the government pretty much ignores this already: the number of people arrested for this is tiny to non-existent.  The problem is that the carriers can and do prevent most transfer of phones; it’s a giant fucking monopolistic conspiracy that is waved in front of our faces every single day.

    1. I don’t agree that “of course you don’t own it”. You may not pay full price for the device at the time of purchase but the cost of the phone is built into the often lengthy service contract. When that contract is up, often you will have paid a lot more for the phone than the RRP of an unlocked device, even if you subtract service cost.

      And I’m not even sure i understand the issue from the carriers perspective. Unlocking your phone does not get you out of your contact. They’ll sill get your cash for the next 12/18/24 months. What’s the issue?

      1. Three words: Custom Bloat-Ware.

        Those annoying little widgets you can’t get rid of that hobble, hamper, hinder and or bombard you with adverts and such while “emulating” functionality the phone already does much better in the first place (for example ATT my Wifi app, it hijacks your wifi setup and basically just breaks it, why? obviously so you are dumped to the cellular network more often which makes them money, sort of, if you go over your plan, it’s all just so damn stupid, *sigh*)

        1. That has nothing to do with unlocking. An unlocked phone can be moved to a different carrier, that’s all unlocking does. What you are talking about is jail breaking and that is legal for smartphones.

          1. I know, I know, I should read the deets, but srsly: I can legally jailbreak my phone but unlocking is illegal? What moron in teleco’s legal dept. overlooked that little window??

          2. Yeah, oops, basically what creesto said too.

            …so I suppose the question stands, with a contract in place, what is their objection to unlocking? One is contractually obligated to pay for the service/device one way or the other(another way to look at this is that at the end of the contract whether I pay it off today or trickle it out for the full two years or whatever the device is mine to keep, I’m not expected to mail it back to them, yet). If this is all about customer retention by shitting on your customers/devices then that is a big problem. Or perhaps they just don’t really understand their own products? What gives?

            And again, if I can jailbreak, doesn’t that also imply that it is also unlocked? I suppose I could jailbreak and put the carrier’s stock ROM back on the device. But, WHY, why would anybody DO that?!

      2. I have a couple guesses:
        1) They want you to stick around if you have an attachment to you phone, even when your contract is up
        2) They don’t want you cashing out in a huff after some particularly bad service or the like. The couple hundred dollars they get for early termination pales compared to what they make off you in a year.

  5. I bought myself a sim free phone off the internet and then got a giff-gaff sim (£12 for a months use with a bunch of minutes plus unlimited texts and internet use). I don’t have ungrading or anything a locked phone contract might offer, but its working pretty good so far.

    1. I just bought a Nexus 4 sim free, no bloatware and no manufacturer overlay, it’s great. I’m already on a contract but since my contract is under £5/month for calls, unlimited data/texts I’m not going to complain about it being for 2 years. Still cheaper than almost all contracts that come with a subsidised phone. 

  6. And that is why my Galaxy Nexus was unlocked from the start. And my Nexus One before that. Phones are one of the very few things that we purchase in such a weird, weird fashion. I decided to go old-school and buy the thing outright. People thought I was crazy for paying $600 for a phone. Like somehow they’re NOT paying $600+ for their phones?

  7. “I have never refrained from any course of action on the ground that it was illegal or immoral…”—Quentin Crisp

    And they wonder why law and order are becoming passé

  8.  I suspect, from the carriers’ perspective, the point is to encourage apathy and inertia. If you can’t unlock your phone right this minute while you are pissed off, bite the bullet and pay the termination fee, and immediately switch to another carrier, you are more likely to stay with the carrier you have the next time you do have the chance to switch.

    Another reason might be that carriers are providing economic incentives to phone manufactures such as Apple and Samsung for exclusive rights to carry certain popular phones. If you can unlock your phone, you can sell it to someone who will use that phone on a competing service. Although this argument seems flimsy since there hasn’t seemed to be any drop off of people buying iPhones from AT&T while the customers were allowed to unlock their phones.

  9. don’t like the restrictions that come with a subsidized phone?

    don’t sign a contract for a subsidized phone

    how fucking hard is this?

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