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    Who Really Owns Your Cell Phone?

    That hunk of metal, glass, and silicon in your pocket, you probably think you own it don't you? After all, you went to the Apple Store or Verizon Store or whatever and forked over a significant sum of money to get it. It came in a box, wrapped in plastic, and you probably carried it out in a bag with a receipt inside. For the most part, the whole retail experience is pretty similar to your weekly trip to Best Buy to stock up on VCRs and keyboard cleaner. You paid money for these things, so they're yours, right? Well, the VCRs and keyboard cleaner are all yours — have fun (weirdo). But in the case of that very expensive smartphone, ownership is a more complicated arrangement.

    To put it bluntly: Your cellphone carrier probably owns your phone. Even though you paid for it with your own money, chances are the carrier subsidized a significant portion of the sale price as an incentive for you to sign a one- or two-year contract that's a dozen pages long and drowning in legalese. This is not news. It's pretty much how cell phones have worked in this country since the 1990s, but some recent changes to the laws that govern these contracts mean that you can keep your phone after the contract expires — the physical device, that is — but you lose the right to actually use it. 

    Over the weekend, it became illegal to unlock your phone. We knew this was coming. Last October, the U.S. Copyright Office and the Library of Congress who serve as a sort of safety valve for the enforcement of the Digital Millennium Copyright Act (DMCA) decided that unlocking cell phones amounted to hacking and gave everyone a 90-day grace period to straighten their shit out. After that, unlocking your phone could lead to a $500,000 fine and up to five years in jail for first time offenders and $1 million fine and up to ten years in jail for repeat offenders. It doesn't matter if you're in or out of a contract. Unlocking the phone without the carrier's permission is illegal. Period. So the iPhone that you spent your hard-earned money on isn't really your phone. You can bust it up and sell it for parts or turn it into a heavy iPod or use it as a basketball (not recommended), but you may not unlock it in order to use it with a different carrier.

    It's not all bad news. As the Electronic Frontier Foundation (EFF) points out in a blog post, it will still be legal to jailbreak or root your phone — at least it will be until 2015. The digital rights organization goes on to explain how unlocking phones "is in a legal grey area under the DMCA," pending any major lawsuits that would force the courts to make a decision on the matter. "The courts have pushed back, ruling that the DMCA doesn't protect digital locks that keep digital devices from talking to each other when creative work isn't involved," explains the EFF's Mitch Scholtz. "And no creative work is involved here: Wireless carriers aren't worried about 'piracy' of the software on their phones, they're worried about people reselling subsidized phones at a profit." In other words, preventing the unlocking of phones helps carriers protect their initial investment when they helped you buy the phone.

    The other bright side is that carriers aren't completely opposed to unlocking phones. Depending on how long you've been in your contract — keep in mind that your massive monthly bill essentially pays back the original subsidy offered by the carrier — getting your phone unlocked could be as simple as calling up the carrier and asking for the unlock code. You can even make up a convincing story if you want, maybe one about how you're traveling abroad and want to use a prepaid SIM card to save money. And if you're still in your contract, it wouldn't make a ton of sense to sell the phone once it's unlocked since you would then have an expensive monthly contract and no phone to support it. These are hypothetical back doors, though, so keep that in mind when you're trying to pick your phone's lock.

    The new ban on unlocking also opens up some opportunities for innovation in the world of cell phone customer service. T-Mobile, for instance, is playing up its "Bring Your Own Phone" program which invites people to bring in unlocked phones and sign up for less committal contracts. You can also just avoid all of the inconvenience and pay a little lot more for an unlocked phone at the beginning. And there will be no shortage of unlocked phones for sale on eBay, since it was both legal and easy to unlock them in the U.S. for years. Finally, you can buy your phone abroad, where unlocking services tend to be ubiquitous.

    If you're still upset that what's yours isn't really yours, don't fret. The EFF, as always, is careful to point out that the legal system is notoriously behind when it comes to regulating the technology industry, and as old lawyers and judges retire, more tech-savvy ones will take their place. So maybe one day — just maybe — we'll be able to have our phone and own it too.

    Image via Flickr

    Topics: Digital Rights, cell phones, dmca, EFF

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