Should unlocking your cell phone be illegal?

Taylor Martin
 from Concord, NC
Published: January 24, 2013

One of the several advantages of SIM technology is the ability to seamlessly swap out cell phones with like-banded phones.

For instance, if you got tired of your current phone one day and had another phone laying around, you could simply pop your SIM card in the other phone and start using it with your personal number. Or, say, you won a phone in our One-Paw Bandit game. Given the new phone is compatible with your network and accepts a SIM card, all you have to do is insert your SIM and keep on trucking.

But say you use T-Mobile and you won an AT&T smartphone in the game. Chances are, the phone is compatible with T-Mobile's 2G or 3G network. If you're lucky, you may also get HSPA+ out of the deal. The chances of the phone being "locked" to AT&T's network, however, are also pretty high.

All is not lost, though. All it takes to unlock said phone is some cash, a little know-how and a code specific to that device which will remove the software block and once again make the phone compatible with other network providers' SIM cards and wireless bands. In some instances, all it takes is a (relatively) quick call to the provider that originally sold the phone. Assuming the phone isn't stolen or still in contract, the carrier should be willing to provide the unlock code sans charge.

If you've taken to the former, DIY method, some recent news might not sit well with you. Michael Gowan of TechNewsDaily reported late yesterday evening that unlocking cell phones without the carrier's permission will be illegal as of this Saturday, January 26. In October, says Gowan, the Library of Congress concluded that unlocking cell phones would not be granted an exemption to the Digital Millennium Copyright Act (DMCA) and would no longer be legal. Those who still wanted to unlock their cell phones before the act was deemed illegal were given a 90-day window, which closes this Friday.

This may prove troublesome for T-Mobile and other carriers who openly allow customers to "bring your own device" (BYOD) and offer incentives to those who do.

It could also create a hurdle for those looking to take the prepaid plunge. Considering the prepaid device selections are still paltry and outdated in comparison to postpaid offerings, more and more U.S. wireless customers have taken their unlocked smartphones to a prepaid carrier to save significant chunks of change each month.

You may recall another controversial ruling around the DMCA for us mobile guys and gals. In July 2010, the Librarian of Congress ruled that rooting (Android) and jailbreaking (iOS) devices was legal under the DMCA. However, in October 2012, yet another change was made. It's legal to root and jailbreak smartphones, yet tablets are not covered in that exemption due to the lack of a solid definition (i.e.: an e-reader could be considered a tablet, as could a laptop, in a weird sort of way). But I digress …

You might be thinking, "I bought my smartphone, I should have free reign to do as I please with it! If jailbreaking/rooting is legal, why isn't unlocking?" But jailbreaking, rooting and unlocking are all vastly different in nature. There is much more at play here than just the hardware, software and networks involved.

Most U.S. wireless subscribers adhere to the subsidized lifestyle, which means they sign a contractual agreement – likely two years – and can purchase the phone at a significantly lower price ($20 to 300 versus $400 to $800). It also means a very small demographic is actually affected by this change to the DMCA.

Unlocking cell phones isn't totally off the table. After Saturday, to legally unlock your phone, you will simply have to ask the carrier first. In my experience, both as a wireless sales associate and as a subscriber, carriers don't mind unlocking a new phone after three or four months into the agreement. And if you fight your case, you can expedite that with relative ease, especially if you have an overseas trip planned.

The larger part of the issue is the agreement, the contract which binds you, the consumer, to the carrier. It has little to do with the device itself and more to do with you paying your bill each month for 24 consecutive months. Once that term is over and the devices/lines are out of contract, having a particular device unlocked by the carrier is relatively simple. And if you were to breach that contract and go to another provider with similar technology, it wouldn't be terribly difficult to convince the carrier to unlock those phones, so long as you pay your ETFs and any outstanding dues.

Not to mention, many phones are coming unlocked these days. Take the Verizon iPhone 5, for example. A phone that would have previously shipped locked down like Fort Knox came totally unlocked to the surprise of many. Simply pop an AT&T SIM card in the Verizon iPhone 5 and you have AT&T service (no LTE, unfortunately). The HTC DROID DNA on Verizon has a similar trick up its sleeve.

But let's put that aside for a moment and focus on the elephant in the room, LTE. The 4G standard that wireless providers around the globe are moving towards is LTE. Many of they U.S. providers' LTE bands overlap; AT&T and Verizon both use the 700MHz band for their LTE networks, yet you cannot simply use a Verizon LTE device on AT&T LTE. Sascha Segan of PC Mag explains:

"Verizon and AT&T both run their LTE networks in the 700-MHz band. But Verizon's network is mostly in 746-787MHz, while AT&T's will be primarily in 704-746MHz. Some Verizon and AT&T spectrum overlaps in an area called the "lower B block," but not much. Verizon could build its phones to exclude AT&T's frequencies, and vice versa."

What this means is, if you care anything about LTE, unlocked phones aren't going to matter to you moving forward. This is exactly why it isn't likely that we'll see a LTE-compatible Nexus smartphone (in an official capacity) from Google without specific carrier branding.

The only people this truly affects are those who swap devices often, BYOD prepaid customers seeking better devices or those who purchase used smartphones and unlock them unofficially, particularly iPhone users, as iPhones purchase with a contract are an entirely different story. But, like I said, there is no shortage of smartphones that come unlocked from the factory these days. The Nexus 4 from Google is a prime example, as is the iPhone 5 through Verizon or DROID DNA. And lest we forget about international devices.

While some may be adverse to the ruling, this change that goes into effect this Saturday is not cause for alarm for the vast majority of wireless users, even those who like or need to unlock smartphones. Still, I can't say I agree with the ruling. As long as you're out of contract, you should have the ability to unlock your smartphone as you please.

Where do you stand on the matter, ladies and gents? Should you have to get permission from your carrier to unlock your smartphone? Or should you have free reign to unlock your smartphone at will?