How Unlocking Your Phone May Now Be A Crime: $500,000 Fines And 5 Years In Prison For First Offense

by Mike Masnick
Techdirt
Jan. 29, 2013

Last week, we warned about the impending deadline if you wanted to unlock your phone "legally." That's because the Librarian of Congress took away the DMCA anti-circumvention exemption that allowed phone unlocking. If you're wondering why we even have the Librarian of Congress deciding such things, that's a much longer discussion. In the meantime, though, Derek Khanna has written an interesting piece of at The Atlantic, in which he points out that, not only is it illegal now to unlock your phone, it's possibly criminal thanks to some broad and ridiculous readings of today's copyright law. Until now, most people had been regarding this as purely a civil matter -- and one where it seemed (mostly) unlikely that companies would take too many people to court.

However, given how we've seen prosecutorial overreach on a variety of cases lately, including in the copyright realm, Khanna presents compelling evidence that unlocking a phone could trigger criminal charges. Specifically, he points to 17 USC 1204, which establishes what qualifies for criminal offenses for circumventing technical protection measures:

Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain...

In case you don't know, 1201 is the anti-circumvention part of the DMCA/Copyright Act.

Now, I can already hear people complaining that unlocking your phone for personal use isn't "willfully and for purposes of commercial advantage or private financial gain." Except, well, it is. Khanna explains how easy it would be for a prosecutor on a mission to "send a message" to make this argument:

Given copyright laws broad interpretation by the courts, it could be argued that merely unlocking your own smartphone takes a device of one value and converts it into a device of double that value (the resale market for unlocked phones is significantly higher) and therefore unlocking is inherently providing a commercial advantage or a private financial gain - even if the gain hasn't been realized. In other words, unlocking doubles or triples the resale value of your own device and replaces the need to procure the unlocked device from the carrier at steep costs, which may be by definition a private financial gain. Alternatively, one can argue that a customer buying a cheaper version of a product, the locked version vs. the unlocked version, and then unlocking it themselves in violation of the DMCA, is denying the provider of revenue which also qualifies. There are several cases that have established similar precedents where stealing coaxial cable for personal use has been held to be for "purposes of commercial advantage or private financial gain." (See Cablevision Sys. New York City Corp. v. Lokshin, 980 F. Supp. 107, 109 (E.D.N.Y. 1997)); (Cablevision Sys. Dev. Co. v. Cherrywood Pizza, 133 Misc. 2d 879, 881, 508 N.Y.S.2d 382, 383 (Sup. Ct. 1986)).

Oh, so given all that, what kind of punishment could you get? It's a lot worse than the statutory maximum of $150,000 for willful infringement of a copyright work. No, now that we're talking circumvention and criminal penalties, a single offense can basically destroy your life:

(1) shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; and

(2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense.

Khanna is right that it's unlikely that a prosecutor would choose to go this far, but just the fact that it's possible is absurd:

If people see this and respond, well no one is really going to get those types of penalties, my response is: Why is that acceptable? While people's worst fears may be a bit unfounded, why do we accept a system where we allow such discretionary authority? If you or your child were arrested for this, would it comfort you to know that the prosecutor and judge could technically throw the book at you? Would you relax assuming that they probably wouldn't make an example out of you or your kid? When as a society did we learn to accept the federal government having such Orwellian power?

And, while I doubt that prosecutors would straight up charge someone for merely unlocking their phone, if they're looking to pile on (or threaten to pile on) more charges against some "hacker" for a variety of other actions, it's not hard to see scenarios where this would be lumped in with other threats or charges.