What happens if you unlock your smartphone now that it’s illegal?

What happens if you illegally unlock your smartphone

On Saturday, unlocking new cell phones that have been locked down by wireless carriers officially became illegal. The decision from the U.S. Copyright Office and the Librarian of Congress to delete phone unlocking from the list of exemptions to the Digital Millennium Copyright Act (DMCA) sparked a wave of consumer criticism, and left people wondering: What now? We’ve already covered the main questions concerning the new no-unlock rule, like which phone are illegal to unlock, but there are some things that still need to be addressed. Here, we’ll clear up some of the lingering key questions.

Will I go to jail if I unlock my new smartphone?

No – at least, not if you only unlock your own device. The DMCA specifies two different levels of penalties for violations: civil and criminal. Unlocking your own device for personal use would fall firmly in the civil category, which means you couldn’t go to jail for doing it, but could definitely get sued by your wireless carrier.

If I get sued, what’s the worst that could happen?

You would have to pay “damages” to your wireless carrier (plus any legal fees that might go along with a lawsuit).

Section 1203 of the DMCA (PDF) stipulates that “a complaining party may elect to recover an award of statutory damages for each violation … in the sum of not less than $200 or more than $2,500 per act …” That means you could be sued for a minimum of $200 for each device that you’ve unlocked, with possible damages shooting up to $2,500 per device.

That said, experts on the DMCA don’t expect individuals to face many lawsuits over small-scale unlocking. And it’s possible that, were you to be sued over unlocking, the court may rule that the DMCA shouldn’t protect against consumers unlocking their devices.

What if I unlock my device and then sell it?

This is where things get more complicated. If, for example, you buy an iPhone 5 from AT&T for the subsidized price of $200, unlock it, then sell it for $650 (the going rate for a new, unlocked 16GB iPhone 5), AT&T could theoretically sue you for $450 in damages – but it’s also possible that unlocking your device to make money would push you into “criminal” territory.

Section 1204 of the DMCA (PDF) makes it a “criminal offense” to “willfully” circumvent any digital locks – this includes DRM on movies or music and the firmware that locks your smartphone – “for purposes of commercial advantage or private financial gain.” Do so, and you’re looking at a fine of up to $500,000, or up to five years in prison, or both, for a first-time offense. Repeat offenders see the consequences double to a maximum fine of $1 million, up to 10 years in prison, or both.

So unlocking a phone you bought from AT&T (or any other wireless carrier) on the cheap for the purpose of making some cash is now decidedly a bad idea.

Would I really be put in jail for selling a single unlocked phone?

Not likely. The real purpose of targeting phone unlocking is to go after “large-scale” sellers of illegally unlocked devices. According to Mike Altschul, the senior vice president and general counsel of CTIA, the wireless industry’s lobbying arm, the no-unlock rule “makes our streets just a little bit safer by making it harder for large scale phone trafficking operations to operate in the open and buy large quantities of phones, unlock them and resell them in foreign markets where carriers do not offer subsidized handsets.”

In short, you’re probably not in any danger of going to jail, even if you do pawn your illegally unlocked handset on Craigslist. But that shady electronics store that sells unlocked phones might be, as are companies who sell phone unlock codes. Still, it’s best to just buy a legally unlocked device in the first place.

Is there any way to get rid of this unlock rule?

Not quickly or easily. One possible scenario is that a court will rule that cell phone owners are not in violation of the DMCA, if they unlock their device for personal use. There is also a White House petition that is gaining ground, which would require the Obama administration to review the unlock rule, if it reaches the 100,000 signature threshold. (Even if it gets enough signatures, that doesn’t mean anything will change.)

And finally, we can just wait. The Librarian of Congress will begin reconsidering exemptions to the DMCA again starting in 2014, and the new exemptions will come out in 2015.

Image via Matt Valentine/Shutterstock


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