Policy Laundering: how the US Trade Rep is trading away America's right to unlock its devices

Some of America's worst copyright laws were passed through a profoundly undemocratic process called "policy laundering." This is what happens when an administration can't get Congress to pass a bad copyright law, so the US Trade Representative instead signs the US up to international treaties requiring America to pass the unpopular law. The 1998 Digital Millennium Copyright Act is one of the policy-laundered laws that has done enormous harm to the country.

Now the USTR is busy again, signing America up to treaties that undermine attempts by Congress to make phone unlocking and jailbreaking legal. America's official representative is going to other countries and telling them, "If you want to do business with America, you must ban jailbreaking and phone unlocking, and in return, we promise to keep those activities on the banned list, too."

In other words, America's trade reps are cramming a massively unpopular, harmful policy down the throats of its trading partners, while simultaneously locking America into the same policy, undermining Congress at the same time.

The Electronic Frontier Foundation wants you to take action on this. Maira Sutton and Parker Higgins have written a good article explaining policy laundering in depth.

U.S. wireless carriers claim that unlocking your phone to change carriers is illegal under Section 1201 of the DMCA, which prohibits the removal of digital rights management (DRM) technology. Section 1201 of the DMCA also set up a triennial rulemaking procedure, whereby the public can ask for exceptions to the rule that you cannot remove DRM from your devices. Phone unlocking was not approved in the last round of DMCA rulemaking, raising the specter of lawsuits against phone owners.

In light of public outrage over this, several members of Congress have introduced legislation to legalize phone unlocking. Already, opponents are saying that an effective narrow fix—a permanent phone-unlocking exemption from Section 1201—may violate the Korea-US trade agreement. Regardless of whether such a claim is true, such chatter can be enough to slow down the pace of change, and make any political reformers of the DMCA more cautious than they might otherwise be.

Big Content interest groups like the Motion Picture Association of America, Recording Industry Association of America, and International Federation of the Phonographic Industry—just to name a few—continue to have a strong influence on US trade negotiators. They are lobbying hard for our government to promote international policies to strengthen their control over how and when the public can interact and experience their creative products.

How the US Trade Rep Ratchets Up Worldwide Copyright Laws That Could Keep Your Devices Locked Forever


  1. Treaties still have to be ratified by the Senate before they have the force of law in the U.S. There are plenty of treaties that the U.S. has signed that have never been ratified (like the Law of the Sea Treaty). So there is no “locking up” until the Senate acts to ratify. Not that we can count on the Senate to do the right thing necessarily, but the USTR does not have unilateral power to bind the nation.

    1.  Although hasn’t there been some delegation of authority from the Senate on the topic of trade treaties?  Kind of like how laws sometimes allow the executive department to write regulations?

  2. And, to make things worse, you’re forcing your shitty policies on the rest of us via the same mechanism.

  3. Corporate citizenship sure looks better than natural born these days. What’s a netizen to do?

    “taxation without representation” is a pretty old problem, really.

  4. The office of the USTR has caused inestimable damage worldwide.  Here’s just one example.

    A friend of mine spent a year in South Korea back in 2000-01, and noticed over that year that their vehicle population rapidly evolved.  At the beginning it was mostly small cars.  A year later, you couldn’t walk a step without tripping over a big SUV or minivan.

    I did some investigation.  I learned that for years, large vehicles were heavily taxed there – the idea being that if you could afford a big, expensive car, you could probably afford to pay more tax on it.  This encouraged Koreans to buy small, efficient cars. 

    The US automakers didn’t make any vehicles that small.  But they apparently figured that if Korea would quit taxing big vehicles so much, maybe they could sell some of their hulking SUVs there.

    In 1998, the USTR got the Korean government to sign a “memorandum of understanding,” agreeing to level the vehicle taxes.  Korea also agreed to stop using vehicle taxes to support education and rural development, to not tax foreign and domestic vehicles differently to support mass transit (subway bond), and to reclassify minivans as passenger cars.

    It worked, but not quite the way the USTR had hoped.  The number of SUVs and vans in Korea increased 80% from 1999 to 2000.  But they weren’t Ford Explorers, Chevy Blazers, Dodge Caravans, and Jeep Cherokees.  They were Hyundai Gallopers, Daewoo Korandos, and Ssangyong Mussos.

    So, at the USTR’s ham-fisted urging, South Korea increased their carbon footprint and cut their support of education, rural development, and mass transit.  This would be bad enough if it were US business gaining advantage at Korea’s expense; but in the end, there wasn’t even any significant gain for GM, Ford, or Chrysler.

    The USTR is just one more example of harm done in our name by our government, but largely invisible to us, and mostly unregulated by Congress.

  5. I tell you as a non-american, it’d be nice to see that the US itself is negatively affected by these USTR treaties – at least then there’s a chance you guys might do something about stopping them! It’d be nice to have that candle burning at both ends.

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