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5 Years in Jail for Unlocking a Phone? Petition Led by Former GOP Staffer Prompts Probe of New Ban

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UPDATE: The White House called Derek Khanna just hours after his appearance on Democracy Now! to say it’s coming out against the cellphone unlocking ban.

WATCH our EXCLUSIVE interview with Khanna minutes after he received the phone call from the White House at the Freedom to Connect conference.

READ the White House response to the petition against cellphone unlocking.

In late January, it became illegal for cellphone users to unlock their phones for use on a different carrier. “It’s a very weird law or regulation that now makes it illegal for us do this really commonplace technology with our own devices,” says former Republican staffer Derek Khanna. He helped spearhead an online petition against the ban, which has drawn more than 114,000 signatures, gathering wide support from several political corners and prompting an investigation by the Federal Communications Commission. We speak to Khanna and Darcy Burner. [includes rush transcript]

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: I want to go to another issue. In late January, it became illegal for cellphone users to unlock their phones for use on a different network without getting permission first from their cellphone carrier. A petition against the law was spearheaded by our guest, Derek Khanna, who—the petition has now received something like 114,000 signatures online. Derek, can you talk about what cellphone unlocking is and what you’ve been able to rally so many people around?

DEREK KHANNA: First, I wanted to commend Sina Khanifar, who actually created the petition. Him and I teamed up on this after he created the petition. He deserves a lot of credit for creating that petition.

So, this is an issue that I came across because it was just absurd. And unlocking your cellphone is actually a pretty simple technique. You plug your phone into a computer, and that allows you to change the settings. You can pop out the SIM card and use it on a different carrier. So you can use an AT&T phone on, let’s say, T-Mobile, for example. And it’s very useful for international travelers. You go to Europe, and you don’t want to pay exorbitant fees, so you get a SIM card when you get off the airplane, or our soldiers when they get deployed to Afghanistan, because there isn’t AT&T in Afghanistan. So it’s a very weird law or regulation that now makes it illegal for us to do this really commonplace technology with our own devices.

AMY GOODMAN: Now, explain what are the penalties and the fact that people, for example, in Europe do this all time.

DEREK KHANNA: The penalties could potentially be up to a half-a-million-dollar fine and five years in jail.

AMY GOODMAN: And this was passed?

DEREK KHANNA: What technically happened was, the Digital Millennium Copyright Act in 1998 is passed—is written in such a way that it outlaws a large number of modern technologies. And it’s up to the librarian of Congress to provide regular exceptions to these policies, exceptions, for example, for persons who are blind or persons who are deaf to have accessibility technology—or exceptions to unlock and jailbreak your phone. And the major wireless participants petitioned to remove this exception, AT&T and Verizon, in particular. And they succeeded, and the exception was removed on January 26, and now—


DEREK KHANNA: —it’s illegal to unlock your phone.

AMY GOODMAN: By? Removed by?

DEREK KHANNA: The librarian of Congress.

AMY GOODMAN: So it’s not even voted on by the House.

DEREK KHANNA: It was not voted upon by any legislative body.

AMY GOODMAN: And so, explain exactly what this means. If you were to do something, what would happen to you?

DEREK KHANNA: If you have a phone purchased after January 26, 2013, and you unlock that device, which is plugging it in and changing the settings on the phone, you could be liable for jail time and a large fine.

AMY GOODMAN: What if you bought it in December, the phone?

DEREK KHANNA: It’s grandfathered in.

AMY GOODMAN: So, in February, you buy a phone. How are they going to find out? And who is “they”?

DEREK KHANNA: It’s probably unlikely that the government is going to find out, but just because it’s unlikely doesn’t mean that you should have a law on the books of this nature, particularly when it could be used by companies to go after you. Sina Khanifar, for example, he ran an unlocking company, and they sold unlocked—a technology to unlock your phone, and they got a letter from Motorola, a cease-and-desist letter saying, “You’re liable for five years in prison and a half-a-million-dollar fine.” So these laws can be used for a whole bunch of different, divergent purposes, even if they’re not regularly enforced.

AMY GOODMAN: So, Darcy Burner, how does this work? I mean, I assume there are people in this audience—I don’t know if I should make these assumptions, but people in the audience, as we broadcast here this morning at the Freedom to Connect conference, who got a phone a few days ago and unlocked it.

DARCY BURNER: When you buy a phone, it should be yours. And you ought to be able to unlock it and use it on whichever network you want to use it on. And the idea that we wouldn’t allow that is pretty offensive, frankly. When people buy phones, they should own the phones, and we shouldn’t have corporations being able to reach into people’s pockets and say, “You may not do with this device what we don’t want you to do.”

AMY GOODMAN: Europeans who come to this country, who do this all the time—come in, buy a phone, and do this—could be jailed here?

DEREK KHANNA: If they bought an American phone—


DEREK KHANNA: —and they did this in the United States, then, yes, they can be criminally liable.

AMY GOODMAN: So, what does your petition demand, Derek?

DEREK KHANNA: We demand that the White House spearhead the reversal of this decision. The librarian of Congress is technically an executive department, even though it’s the librarian of Congress. It’s an appointed person by the president, who can be fired by the president. So the president should review this decision.

But ultimately, this is much broader than just unlocking your phone. It’s now lawful to jailbreak your phone. That’s a brand-new regulation by the librarian of Congress. We have about 23 million jailbroken devices.

AMY GOODMAN: What do you mean?

DEREK KHANNA: Jailbreaking is where you change the settings on your iPhone to allow for you to install an application that isn’t approved. So 23 million jailbroken devices, that means that 23 million Americans potentially were breaking the law until the librarian of Congress changed the law.

So, we should really fundamentally change this whole process, because it’s not working for the accessibility community. We don’t have enough exceptions for persons who are blind or who are deaf. And we don’t have enough exceptions for computer science researchers. And so I’m calling for a general rule that says, if we are going to ban technology as a society, that decision should have strict review and should have an overwhelming governmental interest for doing so. We shouldn’t just ban technology willy-nilly. And I think it’s a really important place to have this conversation here, Freedom to Connect, that we have a law that has effectively banned whole classes of technology, and, you know, people in this room have to petition every three years for permission to continue using the technology.

AMY GOODMAN: You’ve gotten, Derek, the FCC to investigate this unlocking ban?

DEREK KHANNA: That’s correct.

AMY GOODMAN: The Federal Communications Commission. What standing do they have here?

DEREK KHANNA: It’s kind of unclear exactly what their standing is here. But this whole situation stinks.

AMY GOODMAN: But it shows the power of the petition.

DEREK KHANNA: It shows the power of the people to get mobilized on this issue. You know, 114,000—it’s the first petition to reach the new threshold by the White House of 100,000. But this whole situation is really one of crony capitalism, where there are over 100 wireless carriers in this country, and they were all in favor of unlocking cellphones, except for two market participants: AT&T and Verizon. And they won. And AT&T and Verizon spent $32 million lobbying in this town. They have some of the highest lobbying dollars of any company in Washington, D.C. And they outspent T-Mobile, and they outspent Sprint, and they outspent the rural carriers. And I think that’s what happened here.

AMY GOODMAN: Derek, Darcy today is giving the “After Aaron” address here at the Freedom to Connect conference. I’m wondering your views on his activism, one of the leaders of the anti-SOPA campaign. The Internet, in many places, went dark. Many people turned off their websites, campaigned against the Stop Online Piracy Act, and won. And JSTOR, what he did, downloading these documents from this subscription service that students all over America have access to, and then facing severe fines and jail time because prosecution would not let up, ultimately committed suicide last month. Your thoughts on what Aaron’s legacy is and what he did?

DEREK KHANNA: Well, I didn’t have the pleasure of knowing Aaron Swartz, as you did and other people at this conference did. But obviously his work is quite inspirational. And I watched his keynote several times. I even watched it last night to make sure I was prepared for today. But working on Capitol Hill during SOPA, don’t let anyone tell you that it was the big corporations that stopped SOPA. It was people like Aaron Swartz, and it was people—other unsung heroes like Elizabeth Stark. And it was, you know, vigilant reporting by people like Mike Masnick. These are only a few of the unsung heroes of the SOPA protest. And the effect was quite overwhelming, working on the Hill. I mean, after SOPA—before SOPA, no one really cared. After SOPA, every time I had a conversation with a member of Congress about anything remotely technology-related, the first question was: Is this SOPA?

AMY GOODMAN: You were working for Senator Scott Brown—


AMY GOODMAN: —who came out early on opposed.

DEREK KHANNA: He opposed SOPA, yes. Very happy to see that. One of my—

AMY GOODMAN: Final comments, Darcy, on what this conference means and what Aaron did in his activism, his legacy?

DARCY BURNER: We have an opportunity with the Internet and the networks that we have been building to fundamentally change the relationship that people have to their governments all over the world, to really empower true democracy from the ground up everywhere. And it is absolutely worth the fight that Aaron put in, and that the folks here are putting in, to make sure that we fully realize the potential that that offers.

AMY GOODMAN: Well, I want to thank you both for being with us. Darcy Burner is delivering the “After Aaron” address here at the Freedom to Connect conference. She worked with Aaron Swartz on several projects, including ProgressiveChange.org, which she formerly directed, as well as Progressive Congress Action Fund. She’s also—well, she described it herself—one of the biggest tech geeks to run for Congress, running three times in Washington state—

DEREK KHANNA: We need more of those.

AMY GOODMAN: —formerly worked for Microsoft. And, Derek Khanna, thank you very much for being with us.

DEREK KHANNA: Thank you.

AMY GOODMAN: He will also be speaking here, now a visiting fellow with Yale Law School’s Information Society Project. He worked on both Mitt Romney’s presidential campaigns and for Senator Scott Brown, the Republican senator from Massachusetts. He authored a memo on copyright reform for the Republican Study Committee that cost him his job, also is spearheading a petition that’s received more than 114,000 signatures online to make unlocking cellphones legal. We’re going to link to your article, your memo on copywrite, at democracynow.org. When we come back, we’re going to look at municipal broadband efforts around the country and what’s happening, why they’re being stopped. Stay with us.

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