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US Government May Not Be Able To Fix Cell Phone Unlocking Problem

Soulskill posted about a year and a half ago | from the can't-put-that-toothpaste-back-in-the-tube dept.

Cellphones 203

An anonymous reader writes "We recently discussed what appeared to be a positive response from the Obama administration on the legality of cell phone unlocking. Unfortunately, the Obama administration may not be able to do anything about it. It has already signed away our rights under a trade agreement with South Korea. Lawyer Jonathan Band, who works for the Association of Research Libraries, wrote, 'The White House position, however, may be inconsistent with the U.S. proposal in the Trans-Pacific Partnership Agreement (TPP) and existing obligations in the Korea-U.S. Free Trade Agreement (KORUS) and other free trade agreements to which the United States is a party. This demonstrates the danger of including in international agreements rigid provisions that do not accommodate technological development.'You can read more about this issue in a short eight page legal primer by Jonathan Band (PDF). An interesting, related note that the U.S.-KOREA FTA is possibly inconsistent with our domestic patent/drug law in the Hatch-Waxman Act as well. The trade agreement requires us to grant injunctions until the patent is invalidated as opposed to thirty months under current domestic law."

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IANAL (2)

vikingpower (768921) | about a year and a half ago | (#43158127)

There. All is said.

Re:IANAL (5, Insightful)

FriendlyLurker (50431) | about a year and a half ago | (#43158441)

No need to be AL. The TPP is being forced down many countries throats despite many anti-democratic problems [wikipedia.org] by, you guessed it, US special interest groups [truth-out.org] , their lobby mouthpieces and owned politicians. The US elite feigned "positive response" to our concern over cell phone unlocking only due to the enormous amount of people who cried out - to many to just ignore this time round. Now they are using the TPP stick that they crafted to beat our demand for democratic review of the law down, and put the masses back in our place. Oh, but sure they had no choice... yeah, right.

Re:IANAL (1)

Anonymous Coward | about a year and a half ago | (#43158609)

I'd commented earlier that the executive branch had seemed to cave in to the people too quickly on this. Now we know why. They already knew this would be the result.

It's plain how this needs to be responded to; masses of people unlocking their phones, whether it really benefits them at the moment or not, as a form of passive aggressive protest.

So what happened? (1)

Jack Malmostoso (899729) | about a year and a half ago | (#43158153)

The US Government has been out-lobbied by Korean lobbyists? Or is Samsung's plan much bigger than Apple thought?

Re:So what happened? (1)

Anonymous Coward | about a year and a half ago | (#43158239)

Treaties occupy a special place between the Constitution and the rest of United States law. This is why there's a big deal about the Senate confirming them.

Re:So what happened? (0)

Anonymous Coward | about a year and a half ago | (#43158921)

Why there's supposed to be. It's beyond me why we let the government sell out all our rights so that the rich have more places to invest their money.

Re:So what happened? (5, Insightful)

Xest (935314) | about a year and a half ago | (#43158903)

What happened is the US government found a good excuse for saying one thing and doing another to make it appear like it was on your side without that actually being so.

Welcome to politics.

I do not see a problem (4, Interesting)

betterunixthanunix (980855) | about a year and a half ago | (#43158159)

KORUS does allow for administrative procedures like the DMCA's rule-making to adopt temporary exemptions, but not permanent ones. The challenge before Congress is to devise a permanent exception for cell phone unlocking that does not breach the obligations under KORUS and other similar free trade agreements

The US constitution allows temporary copyrights; Congress has managed to ignore the spirit of the constitution by extending copyright terms 20 years every 20 years. How about we just do the same with DMCA exemptions?

Re:I do not see a problem (2)

characterZer0 (138196) | about a year and a half ago | (#43158435)

Or why not just make a temporary exemption that only lasts until unix time overflows 64 bits?

Re:I do not see a problem (1)

rvw (755107) | about a year and a half ago | (#43158493)

Or why not just make a temporary exemption that only lasts until unix time overflows 64 bits?

Because those DMCA servers don't run on Unix time you stupid! ;-)

Re:I do not see a problem (0)

Anonymous Coward | about a year and a half ago | (#43158741)

Lots of bills that Congress passes have sunset provisions. They can pass one here that sunsets in, say, 100 years.

Re:I do not see a problem (1)

Bill_the_Engineer (772575) | about a year and a half ago | (#43158809)

The US constitution allows temporary copyrights; Congress has managed to ignore the spirit of the constitution by extending copyright terms 20 years every 20 years. How about we just do the same with DMCA exemptions?

Technically it is still temporary. You just disagree on how long is temporary. Sort of like those "temporary" portable buildings at schools and the "temporary" Bush tax cuts, you never know how temporary it actually will be.

Re:I do not see a problem (0)

Anonymous Coward | about a year and a half ago | (#43159185)

If there's an expectation that it's going to be renewed every time, it's not temporary.

IP legislation is a monster (4, Interesting)

mangu (126918) | about a year and a half ago | (#43158169)

It seems that these days IP legislation tries to swallow everything. Nothing is safe from IP laws.

It's time to reverse that trend, most of the DMCA should be considered unconstitutional anyhow. If someone sold me a device, why can't I tear it apart to see how it was built?

Patents and copyrights exist for making sure no one needs to keep trade secrets. The intent of those laws is to let people learn about the technical details behind the technology.

Having laws that restricts the liberty of learning goes against every principle of a civilized society.

Re:IP legislation is a monster (0)

Anonymous Coward | about a year and a half ago | (#43158725)

who says we're living in a civilized society any longer?

Re:IP legislation is a monster (1)

Evtim (1022085) | about a year and a half ago | (#43159171)

Who says we ever lived in one?

The American Way (1)

Anonymous Coward | about a year and a half ago | (#43158189)

Nobody is ever responsible for anything and eveyone's hands are always tied, that's the American way.

another reason (0)

Anonymous Coward | about a year and a half ago | (#43158197)

North korea is the best korea

Re:another reason (1)

Custard Horse (1527495) | about a year and a half ago | (#43159145)

You should choose another Korea..

other countries have laws that phones must be unlo (3, Interesting)

Joe_Dragon (2206452) | about a year and a half ago | (#43158209)

other countries have laws that phones must be unlocked or the carriers must give out the unlock code.

We need to end carrier only phones and phones with all the carrier software forced on you that you have to hack your own phone to remove it you should have the choice of how much of the software that you want. Visual voice mail (good), a app that let's you see how many mins / data / txt of your plan that you used and uses there meter (good) other apps not so much.

Re:other countries have laws that phones must be u (5, Insightful)

CastrTroy (595695) | about a year and a half ago | (#43158281)

I really don't see why phones are locked in the first place. You're already tied to the carrier with a legal contract. There shouldn't need to be a technical measure in place to make sure you don't take the phone to a different carrier. If you try to leave before the contract is over, there's already high fees for breaking the contract. If you choose to not pay those fees, it would probably look bad on your credit rating. After your contract term ends, you should be free to do whatever you want with the phone. Actually, If they now have the system in place to block stolen phones, the major providers could probably place the phones from non-paid contracts on a list where they would refuse to allow the phone be used until the contract is paid in full.

Re:other countries have laws that phones must be u (4, Insightful)

Hatta (162192) | about a year and a half ago | (#43158433)

Because, fuck you, that's why.

Re:other countries have laws that phones must be u (5, Interesting)

wbr1 (2538558) | about a year and a half ago | (#43158495)

This is already done. All carriers keep a list of phones with bad ESN/MEID numbers. THey become bad through being reported lost or stolen, or having an outstanding balance. This even keeps sales of phones between customers of the same carrier down. You cant just buy a sprint phone from someone and expect it to work on sprint, if the ESN/MEID is blacklisted its a no go.
Carrier lock is simply a way for them to try to abduct more customers. I use abduct very purposefully here.

abduct [ab-duhkt] verb (used with object) 1. to carry off or lead away (a person) illegally and in secret or by force, especially to kidnap.

There is no technical or contractual reason to keep you locked. The OP is correct in that you sign a binding legal contract when entering a contract with a mobile carrier, but when that contract is up, they want you to stay, not run off to some n-contract or other carrier with the phone you purchased (albiet at a subsidy) from them. If their contract did not cover the subsidy discount on the phone, then they need to redo their math and stop devices that are now legally owned by others hostage.
In addition to this however, there is no incentive for handset makers to push to change it. If you cannot continue to use your phone on a carrier you like, what do you do? You purchase a new phone and the handset maker profits as well.
None of this fosters competition or aids the consumer. It is solely a self serving policy by those in (capitalistic) power.

Re:other countries have laws that phones must be u (2)

Impy the Impiuos Imp (442658) | about a year and a half ago | (#43158591)

That's what the two-year contract is for -- to amortize the cost of the $600 phone over 2 years while still giving them (Verizon, et al) service profits.

Fair enough, if that's how the cost plays out so you don't have to pay for a laptop equivalent up front. But you are still buying it, so it should be yours at the end.

Re:other countries have laws that phones must be u (1)

wbr1 (2538558) | about a year and a half ago | (#43158677)

My point exactly about the subsidized phoned. And if for some reason they have not recouped their costs for providing the phone at a discount through their contract, that is a failure of their MBAs, not the customer. They chose the terms, not the customer.

Re:other countries have laws that phones must be u (1)

tgd (2822) | about a year and a half ago | (#43158729)

I really don't see why phones are locked in the first place. You're already tied to the carrier with a legal contract. There shouldn't need to be a technical measure in place to make sure you don't take the phone to a different carrier. If you try to leave before the contract is over, there's already high fees for breaking the contract. If you choose to not pay those fees, it would probably look bad on your credit rating. After your contract term ends, you should be free to do whatever you want with the phone. Actually, If they now have the system in place to block stolen phones, the major providers could probably place the phones from non-paid contracts on a list where they would refuse to allow the phone be used until the contract is paid in full.

It has nothing to do with the contract with you, it has to do with the contracts they have with the manufacturers. Locking is about tying the handset to the carrier, not you to the carrier.

Example: you could unlock the iPhone as soon as it showed up on other carriers. Even ATT would do it while you were still on contract, if you asked.

Phones that are still on exclusive contracts tend to be non-unlockable.

Re:other countries have laws that phones must be u (4, Interesting)

houghi (78078) | about a year and a half ago | (#43158931)

Even before the contract ends,. you should be allowed to do whatever you want with the phone. If I sign the contract and decide I want to use my Nokia 3110. I should be allowed to do that.
The phone that I got with the deal I should be allowed to give to my kid to play games on. I should be able to sell it.
If I make more money on selling the phone then I did by paying you, then that pricing policy of yours is YOUR problem, not mine.

It is not just locking. Bundled sales is the other part that is bad for people.

Re:other countries have laws that phones must be u (0)

Anonymous Coward | about a year and a half ago | (#43159063)

Agreed. This is the argument that brought me to your side of the debate. Locking seemed reasonable to me for subsidized phones, but the contracts make it completely unnecessary, and it handicaps international travelers who want to swap in a different sim for a foreign carrier..

Sold out by corrupt politicians. (4, Funny)

fredrated (639554) | about a year and a half ago | (#43158211)

Who would have guessed?

Re:Sold out by corrupt politicians. (1)

ChemGeek4501 (1044544) | about a year and a half ago | (#43158301)

I would not go has far as to say "corrupt" in this case. Ignorant of the unintended consequences of the law, perhaps. But I don't see this (yet) as a example of abject corruption. More time/data needed for the corrpution charge.

Re:Sold out by corrupt politicians. (1)

Anonymous Coward | about a year and a half ago | (#43158519)

If lobbyists were involved, it's corruption. Lobbyists have no legitimate function and are just vectors of corruption.

Why not just ignore people who break the law? (4, Interesting)

CastrTroy (595695) | about a year and a half ago | (#43158229)

There's a lot of laws on the books that are never enforced. There's roads where everybody drives 15 miles per hour over the speed limit and nobody ever gets a ticket because everybody knows that it's perfectly safe and that the limit is just set too slow. There was recently a law passed in Florida where all non-US citizens had to have an international driver's license to drive in the state. They forgot about all the Canadians who go there every winter. Once they realized the problem, they told all the cops to just ignore the law. This is just without even mentioning the completely ridiculous laws that are still on the books from hundreds of years ago. Just because a law is on the books, doesn't mean they have to enforce it. If there's no mandatory minimum punishments required as part of the trade agreements, judges could just let people off with a very small fine, and cops would learn that it wasn't worth their time to charge anybody for breaking the law.

Re:Why not just ignore people who break the law? (4, Insightful)

Aboroth (1841308) | about a year and a half ago | (#43158339)

That is a perfectly pragmatic viewpoint, and I would take it as well, if the world were sane. Actually, it doesn't only take stupid or crazy people to mess up a system like you describe, it just takes well-meaning people with messed up priorities.

There are already more laws than anybody could ever know about. We are already at the point where it is easy to be breaking multiple laws without knowing it. The police, even good police, like having this situation because it lets them arrest anyone they want at any time, if they can just figure out one of the many laws they are breaking, even if it is a stupid one. Of course they like this situation because it makes their jobs easier, and they think that their "gut feelings" are 100% correct 100% of the time.

Do you really want to live in that kind of world? Well, whatever your answer, you already do. But do you want to make it worse?

Re:Why not just ignore people who break the law? (0)

Anonymous Coward | about a year and a half ago | (#43158387)

They can only ignore these laws because they are the plaintiff - they effectively refuse to press charges. In civil suits they wouldn't have this luxury.

Re:Why not just ignore people who break the law? (3, Insightful)

Anonymous Coward | about a year and a half ago | (#43158439)

Your naivete shows.

Silly traffic laws are enforced when it suits the police to enforce the laws. Haven't you watched "Law and Order" where laws are stretched to fit people ADA Jack McCoy wants to persecute? Police do this also and use the silliest of laws to facilitate their harassment.. Every regulatory entity does this. To think that they don't is quite pollyana-ish.

Re:Why not just ignore people who break the law? (0)

Anonymous Coward | about a year and a half ago | (#43159187)

The three branches of the US Government are the Legislative, Executive, and the Judicial.

Legislative: Makes the laws and budget (sometimes)
Judicial: Interprets the laws
Executive: Enforces the laws

If the president does not want to enforce a law, he does not have to. The most recent example of this I can think of is he put lower emphasis on enforcing immigration laws before the election in an effort to pass a more comprehensive reform that would allow them to gain citizenship.

Re:Why not just ignore people who break the law? (2)

richlv (778496) | about a year and a half ago | (#43158449)

isn't that one of the basic rules of a police state ? everybody is always guilty. say something wrong, and you get prosecuted.

any incorrect or unfair law should be removed or fixed as soon as possible.

Re:Why not just ignore people who break the law? (1)

houghi (78078) | about a year and a half ago | (#43158747)

I agree with you, except for the small fine judges could give.
What they should do is completely ignore it. Not even let it get to the judge.

In Belgium I have seen letters (a few years ago) from the court not to bother them with these minimal claims and if they did, they would hold them responsible for obstruction of the law, because it would take precious time away from serious cases.
However, they wrote, they would be willing to help if it was about people who made money from it.
This was around the year 2000 and the letter was to the Belgian MAFIAA.

They have a similar thing with soft drugs. If it is for personal usage, they will ignore it. They could still charge you, but they don't. That way they did not offended the French who did not want to see it being made legal.

So no fines whatsoever and make it clear to the cops, so they don't stop you and harass you about things just because they can. In Belgium they could get reprimanded and ivestigated by Comite P [comitep.be] .

Selective Enforcement (3, Insightful)

Comboman (895500) | about a year and a half ago | (#43158767)

Having "unenforced" laws on the books that everyone breaks is dangerous because it allows police to selectively enforce those laws when they need to punish a specific individual or group (cracking down on homeless people for loitering for example, or the overly broad "computer hacking" law which was used to go after Arron Swartz).

Re:Why not just ignore people who break the law? (1)

thewolfkin (2790519) | about a year and a half ago | (#43158923)

so that international license thing was a new law? THAT's why there was such a fuss.. well I'm pretty sure for the record they recently took care of that.

Re:Why not just ignore people who break the law? (2)

Bill_the_Engineer (772575) | about a year and a half ago | (#43158957)

Florida's international drivers license requirement is an unenforceable law. Florida can't legally make it a requirement because it violates the Genova Convention on Road Traffic [un.org] . While the law is unenforceable, it is still on the books and can cause grief for international travelers who may want to get a rental car within the state of Florida.

ah yes the "FFA" (-1)

Anonymous Coward | about a year and a half ago | (#43158235)

we have here a basic case of "FFA" or Fat Fuck American.

FFA cannot unlock phone to order pizza.
FFA cannot unlock phone to get up from couch.
FFA cannot get up to vote because FFA did not unlock phone to get up from couch.
FFA cannot unlock phone to buy razors to shave neckbeard.

somehow FFA can post on slashdot...

Re:ah yes the "FFA" (0)

Anonymous Coward | about a year and a half ago | (#43158391)

moron.

It's not that difficult (4, Interesting)

cpt kangarooski (3773) | about a year and a half ago | (#43158265)

Congress can pass the law; they have that power, and no mere treaty can take it away.

What happens, if Congress passes a law that is in conflict with the treaty is that the most recent of them is in effect in the US.

As for our international obligations, we have a few choices: We can withdraw from the treaty. We can seek to renegotiate the relevant part of the treaty. Or we can ignore the conflict. If we ignore it, there may be some enforcement mechanism intended to encourage us to do something, but depending on what it is, we may be able to ignore that too. After all, the US is in violation of the Berne Convention [wikipedia.org] and we've ignored that successfully for over a decade now.

Re:It's not that difficult (1)

drinkypoo (153816) | about a year and a half ago | (#43158289)

Congress can pass the law; they have that power, and no mere treaty can take it away.

The problem is, if congress ratifies a treaty, it becomes the law of the land. You want them to pass a new law which conflicts with it? No, they'd either ignore or renegotiate the treaty. More likely though, they will simply observe it. They don't REALLY want to give us unlocking.

Re:It's not that difficult (3, Informative)

Attila Dimedici (1036002) | about a year and a half ago | (#43158469)

It is not clear to me from the article if the treaty specifies the list of exceptions to "circumvention prohibition" as the only exceptions allowable (which happen to be the same as the list in the DMCA) or if it merely specifies the list given in the DMCA (although my reading of the article causes me to believe it is the former). If by some chance the treaty is written in the latter manner, then it is simply a matter of Congress amending the DMCA.
Actually, under U.S. law, the KORUS free trade agreement is not actually a treaty. It is instead a "congressional-executive agreement". That is, rather than being signed by the President and ratified by a two-thirds majority of the Senate it was passed by simple majorities of both houses of Congress and signed by the President. Which means that under U.S. law it is no more binding than any other law. Congress may pass a law changing it at any time (as far as U.S. law is concerned).
I will restate this. The KORUS free trade agreement is not a ratified treaty, which would be negotiated by the President and ratified by a two-thirds majority of the Senate. It is no more "the law of the land" than any other law passed by Congress and, under U.S. law, may be amended by Congress at any time (subject to the same provisions as any other law). If Congress passes a law modifying the agreement (which is what this is, it is not actually a treaty), that modification supersedes the previous law (agreement). If South Korea was unaware of this, they should pay closer attention to U.S. law before signing an agreement with the U.S.

Re:It's not that difficult (-1)

drinkypoo (153816) | about a year and a half ago | (#43158561)

I will restate this. The KORUS free trade agreement is not a ratified treaty,

Well, I got it the first time. So, thanks for saying it once, but not for repeating yourself.

Re:It's not that difficult (1)

Attila Dimedici (1036002) | about a year and a half ago | (#43158711)

The repeat was not for you. I figured that you would understand what I had posted in the context of what you had posted. However, I have frequently had people other than the poster I replied to take issue with something I have posted because they have ignored the context created by the post I replied to. I attempted to preempt such things by restating my point in a way less reliant on the context of your post.

Re:It's not that difficult (1)

cpt kangarooski (3773) | about a year and a half ago | (#43158625)

No treaties are binding on Congress such that later-passed legislation doesn't supersede them. The most a treaty can manage is to stand at the same level as federal law, below the level of the Constitution.

Re:It's not that difficult (1)

jbengt (874751) | about a year and a half ago | (#43158861)

No treaties are binding on Congress such that later-passed legislation doesn't supersede them. The most a treaty can manage is to stand at the same level as federal law, below the level of the Constitution.

That is just wrong, treaties supercede the Constitution.
However, Attila Dimedici noted that the KORUS free trade agreement is not really a treaty, so Congress may be able to override it easily, if they want.

Re:It's not that difficult (2)

cpt kangarooski (3773) | about a year and a half ago | (#43159133)

No, treaties are inferior to the federal constitution. The constitution says so, in Article VI. Treaties are superior to state constitutions, however. (Also according to Art. VI)

Re:It's not that difficult (2)

Attila Dimedici (1036002) | about a year and a half ago | (#43158929)

According to Thomas Jefferson that is not the case, "...stipulations by treaty are forever irrevocable but by joint consent." That is, agreements such as the KORUS free trade agreement may be dropped by either party whenever they become inconvenient, but an actual ratified treaty may only be changed by mutual agreement between the two countries.

Re:It's not that difficult (1)

Skapare (16644) | about a year and a half ago | (#43159169)

Just pass a new law that undoes some or all of a previously passed law. There are lots of people in Congress trying to undo Obamacare. Do it that way.

Re:It's not that difficult (1)

jbengt (874751) | about a year and a half ago | (#43158805)

Sorry, but the only way for Congress to override a treaty is to rescind that treaty, and that wouldn't take place without the cooperation of the executive branch and the lobbyists. Treaties even trump the US constitution.

Re:It's not that difficult (1)

operagost (62405) | about a year and a half ago | (#43158915)

No they don't. If the judicial branch invalidates something in a treaty because of constitutional concerns, it's dead.

Re:It's not that difficult (1)

Anonymous Coward | about a year and a half ago | (#43158887)

Please read up on the Eli Lilly NAFTA tribunal dispute with Canada. FTA's provide for direct action by companies against countries. We have the Investor State disputes which are worth billions of dollars. Countries lose most of the disputes and this is becoming a serious problem for most FTA's. These provisions are not like the other treaties. They have sharp teeth and they bite. Corporations are happy to arbitrate before a three judge arbitration pannel. Most arbitration judges are arbitrators who have been fed and brought up in arbitration proceedings where the biggest players are corporations. If you have worked all your life for corporations and you are brought in to decide a case between a Country and a corporation where do your loyalties lie? It's a specious argument that the congress can do what it wants on a treaty.

On a second and serious note even with inter country arbitration US has been on the losing side many many times at WTO. We don't even have a corporation on the other end in WTO arbitration!
http://www.international.gc.ca/trade-agreements-accords-commerciaux/assets/pdfs/eli-01.pdf

On a third related note. US customers are going to pay more for all the protectionist IP measures we are legislating/ dealing with under treaty law. More than half of the IP in the world is generated by foreign corporations and foreign nationals. 50% of patents in America are foreign owned and 80% of copyrights in America are foreign owned. It's a study by the information justice project. There are contributors from Columbia university and American University in this information justice project.

A recent study by infojustice on IP ownership and nationality concludes: "IP policies adopted by [the US] Congress and the [US] Executive Branch may benefit foreign corporations at the expense of US consumers." and " There is absolutely nothing sinister about foreign ownership of firms in IP intensive industries, including foreign ownership of companies originally established in the US. This is to be expected in a globalised economy with multinational corporations and complex cross-border supply chains." and "In such a globalised economy, US policymakers should no longer assume without reflection that the beneficiaries of protectionist IP policies are US firms and, by extension, US workers and shareholders."

http://infojustice.org/wp-content/uploads/2013/03/foreignownrep.pdf

On a fourth but related note. Read why the FTA's are not treaties under the US constitution but are binding under international law.
http://digitalcommons.wcl.american.edu/research/34/

Re:It's not that difficult (0)

Anonymous Coward | about a year and a half ago | (#43159181)

I think you forgot the most likely one:
Everyone ignores the conflict with the treaty because e.g. Korea doesn't care about phone unlocking. Since nobody cares to invoke them the enforcement mechanisms are irrelevant (treaties generally don't have any automatic enforcement, someone needs to bring an action first).

Since when does the US care about treaties.... (0)

Anonymous Coward | about a year and a half ago | (#43158269)

It's wiped it's ass with more treaties than it has with toilet paper. Just ask the Native American community what a treaty with the US is worth!

What? Yes it can. (4, Interesting)

PlusFiveTroll (754249) | about a year and a half ago | (#43158271)

>US Government May Not Be Able To Fix Cell Phone Unlocking Problem

The U.S. (FCC/FTC?) can STOP the problem of locked phones by issuing an order saying that locked phones cannot be sold starting 5 minutes from now. The phone manufactures will starting doing back-flips unlocking new and current phones so fast the earths spin might slow down some.

Re:What? Yes it can. (1)

Attila Dimedici (1036002) | about a year and a half ago | (#43158483)

What law gives the FCC or the FTC (or any other administrative agency) the authority to issue such a rule? (I'm not saying they do not have the authority, but your assertion that they do does not make it so).

Re:What? Yes it can. (0)

Anonymous Coward | about a year and a half ago | (#43158535)

Yes, yes; just like your freedom of speech. You CAN say anything you want...but you may just want to consider the consequences of your actions.

Re:What? Yes it can. (5, Insightful)

CastrTroy (595695) | about a year and a half ago | (#43158547)

I like this idea. You can't make it legal to unlock phones, but you can probably make it illegal to sell locked phones in the first place. I already stated elsewhere in these comments that it's unnecessary to lock phones in the first place since there's already a contract with fees for breaking it, and the have the technological capability to blacklist phones that are still under a contract.

Bullshit! (5, Insightful)

Anonymous Coward | about a year and a half ago | (#43158291)

Invade another country? "No problem. We'll just have to change the rules."

Make it legal ( again ) to unlock phones? "We want to do it but our hands are tied."

Of course it is bullshit!

They are not doing it because their corporate owners don't want them to. They just want to make it seem like they are on our side. If they are, then who is this mystical other side that makes this impossible. This is bullshit.

Free Trade? Yeah right. (4, Funny)

kramer2718 (598033) | about a year and a half ago | (#43158297)

I find it really ironic that it is a "Free Trade Agreement" that is preventing an activity that fundamentally is "Free Trade" (you can sell an unlocked phone to someone on another network).

I believe it comes down to the fact that governments support business at the expense of small business and DIYers. Probably because small business can't aford lobbyists.

This has nothing to do with the carriers (4, Insightful)

erroneus (253617) | about a year and a half ago | (#43158303)

It is the carriers which are responsible for the locking. The suppliers don't give a rat's tail about whether a phone is locked or not. The carriers make the requests and the suppliers deliver on that request. Suppliers have no dog in the fight over locked vs. unlocked beyond the mild fact that a locked phone will likely stay in the region in which it was procured. But people who relocate and wish to take their phones with them are an insignificant minority.

I get the feeling this is a blame and information deflecting piece intended to point people in directions which are not relevant.

Re:This has nothing to do with the carriers (2)

Somebody Is Using My (985418) | about a year and a half ago | (#43158575)

Arguably, it is to the supplier's advantage if the phone is locked and can never be unlocked because then that phone is irrevocably tied to one carrier. If the end-user wants to go to another carrier, they /have/ to buy a new phone; they can't unlock their existing phone and take it with them. This means an additional sale for the supplier.

In actuality, I'd guess that the number of end-users who actually DO bring their phones with them to a new carrier is such an insignificant amount that it's not worth them getting involved.

I'm not entirely sure what the advantage to the carrier is, however. The end-user is already tied to the carrier by a contract and the costs of said contract more than subsidize the cost of the phone. Is it the worry that at the end of the contract the end-user will take the (over)paid-for phone and switch to another carrier? The fact that the phone is already locked doesn't seem to be stopping this; anecdotally, I know people who purposely switch (or take a new contract with the same carrier) just to /get/ new phones. I'd reckon most people who stick with a carrier past the length of the initial contract do so because of a lack of viable options or because the inconvenience of switching outweighs the benefits.

Or is there a significant number of people who exit the initial contract prematurely (either paying off the fine or trying to get out of it entirely), signing up /only/ to get a "cheap" phone? Frankly, given how upset so many of the customers are over this issue, this would be an easy way for the carriers to garner some good will; announce that in future all cell phones are unlocked from the start (with appropriate small-text notice that, yes, you are still liable for the cost of the phone if you try to sneak out of your contract).

Re:This has nothing to do with the carriers (1)

tgd (2822) | about a year and a half ago | (#43158749)

It is the carriers which are responsible for the locking. The suppliers don't give a rat's tail about whether a phone is locked or not. The carriers make the requests and the suppliers deliver on that request. Suppliers have no dog in the fight over locked vs. unlocked beyond the mild fact that a locked phone will likely stay in the region in which it was procured. But people who relocate and wish to take their phones with them are an insignificant minority.

I get the feeling this is a blame and information deflecting piece intended to point people in directions which are not relevant.

The carriers want the lock to preserve their exclusivity to a device, not to lock the customer in. The manufacturers want the lock because they get kickbacks in exchange for the exclusivity.

Re:This has nothing to do with the carriers (1)

houghi (78078) | about a year and a half ago | (#43158821)

Locking is interesting for the supplier, because it means that people will have to buy a new phone. With a bit of luck they will buy one of theirs.
They do not even have to do anything t make the phone obsolete. The phone just stops working.

This is not even about people relocating. This is about people who get a new plan. Not sure if it happens the same all over the world, but I have seen that they just offer e new phone and by accepting that new phone, they signed up for a new 2 year plan. After 18 months, they will get the next phone.

If you accept it, what are you going to do with 18 month old phone? Sell it? You can't, because it is locked.

What would make sense is having a law AGAINST locking. From a end user point of view there is nothing good about it.

Re:This has nothing to do with the carriers (0)

Anonymous Coward | about a year and a half ago | (#43159075)

"This has nothing to do with the carriers"

"It is the carriers which are responsible for locking"

What the fuck?

Lame Excuse (0)

Anonymous Coward | about a year and a half ago | (#43158313)

They have no power to negotiate an updated agreement? That seems fishy to me. Maybe Obama's powerless (ya, right) but someone else then clearly must have the ability to work that out.

Re:Lame Excuse (1)

EzInKy (115248) | about a year and a half ago | (#43158361)

Too many people hate on Obama for him to accomplish much.

Google Lobbied for it (0)

Anonymous Coward | about a year and a half ago | (#43158347)

Google lobbied hard to get this FTA treaty signed and ratified, and they lobbied HARDER to get the government to criminalize unlocking, all right before they released a somewhat affordable, unlocked, no-obligation phone.

all hail the mighty mammon (0)

Anonymous Coward | about a year and a half ago | (#43158383)

you know the country has been sold out to the highest bidder when foreign trade treaties are used to prevent the democratic process from changing laws

Secret Treaty? (4, Insightful)

hawguy (1600213) | about a year and a half ago | (#43158389)

This is the most worrisome part of the story:

The draft text for TPP is secret, but the U.S. proposal for the IP chapter was leaked two years ago. The leaked proposal contained KORUS's closed list of exceptions.

How can the US sign a treaty that is secret from the citizens of the US? The government shouldn't be allowed to sign (or even consider) a trade treaty with secret terms. How else can the people know if they want to be party to the treaty?

Re:Secret Treaty? (1, Insightful)

Lumpy (12016) | about a year and a half ago | (#43158413)

Welcome to how the Republicans and Democrats operate. They are both utter scumbags.

Re:Secret Treaty? (3, Interesting)

Impy the Impiuos Imp (442658) | about a year and a half ago | (#43158613)

It isn't secret anymore -- when they actually vote on it. But then there's no time to examine it, much less get public commentary, much less habe 6 months for people to think it over.

These are the same people who brought you the "we have to approve the health care bill to see what's in it."

Re:Secret Treaty? (1)

jbengt (874751) | about a year and a half ago | (#43158911)

Treaties are often negotiated in secret. It would be hard to get some parties together without that. Still, it seems daft to keep a trade negotiation secret until just before voting on it - under whose authority are they negotiating, anyway, if not the people from whom they are keeping the negotiations secret?

Free Trade? (0)

Anonymous Coward | about a year and a half ago | (#43158393)

So now "Free Trade" means "locked devices"? WTF? We've always been at war with eastasia? Right? Big Brother? I mean come on. I don't know much about "Free Trade" (obviously), but I would think it meant that it was unrestricted or something like that. I guess it really means "restrict the fuck out of it"?

Too lazy to sign in (0)

Anonymous Coward | about a year and a half ago | (#43158405)

According to the constitution treaties that are ratified are the supreme law of the land. At least that is how I would read article 6 of the constitution. But this is not enforced much if at all due to the legal mess it would create.

No problem (1)

Anonymous Coward | about a year and a half ago | (#43158445)

Remove U.S. troops from South Korea. North Korea invades South Korea. One or the other will win; either way, there's no longer an entity called "South Korea", so the treaty is void.

Sure, deaths would be in the millions, but we'd be able to move from carrier to carrier then. And isn't that the most important thing?

(for any morons reading; yes, this is just humor, not an actual avocation of war to fix our unlocking problem)

Different jurisdiction (1)

Freddybear (1805256) | about a year and a half ago | (#43158505)

IANAL but why would a treaty with Korea have any bearing on a contract dispute between an American consumer and an American cellphone service provider? Sure the provisions of the law may appear to be in conflict, but they apply to different jurisdictions.

Re:Different jurisdiction (1)

gary_7vn (1193821) | about a year and a half ago | (#43159161)

Signed and ratified international treaties are US law.

Re:Different jurisdiction (1)

the eric conspiracy (20178) | about a year and a half ago | (#43159165)

Because of the supremacy clause in the Constitution:

"This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding."

Treaty? BFD... (1)

Aaden42 (198257) | about a year and a half ago | (#43158509)

As if the US has never unilaterally ignored provisions of a treaty when it suits us? Not seeing why this should stop the POTUS, assuming he really gave a damn about the rights of anyone making less than $1mil a year.

Something Stinks in Seoul (0)

Anonymous Coward | about a year and a half ago | (#43158521)

Can we assume that S.Korea abides by the same policy?
Does anyone know?

If this only applies to phones manufactured in S.Korea,
then China, Japan etc would have a big marketing tool.
Something doesn't smell right with this explanation.

US Government can do plenty (3, Interesting)

Cajun Hell (725246) | about a year and a half ago | (#43158529)

Even if a treaty forbids Congress from correcting DMCA, it should be easy to do something about it. FCC could ban the manufacture, sale, and trafficking in devices which transmit on licensed spectrum, if those devices require DMCA violations in order to repurpose.

That wouldn't be as good as repealing DMCA, but it would make DMCA irrelevant to this narrow case. Can't unlock iPhones? Ok, unlocking iPhones will remain illegal. But it'll also be illegal to sell locked iPhones. If someone wants a locked iPhone, sell 'em a locked iPod Touch instead, implement the phone functionality using wifi.

Of course: fuck the treaty. Repeal DMCA instead. And fuck all these narrow DMCA-amending proposals which are limited to "wireless devices."

Re:US Government can do plenty (-1)

Anonymous Coward | about a year and a half ago | (#43159001)

Please read up on the Eli Lilly NAFTA tribunal dispute with Canada. FTA's provide for direct action by companies against countries. We have the Investor State disputes which are worth billions of dollars. Countries lose most of the disputes and this is becoming a serious problem for most FTA's. These provisions are not like the other treaties. They have sharp teeth and they bite. Corporations are happy to arbitrate before a three judge arbitration pannel. Most arbitration judges are arbitrators who have been fed and brought up in arbitration proceedings where the biggest players are corporations. If you have worked all your life for corporations and you are brought in to decide a case between a Country and a corporation where do your loyalties lie? It's a specious argument that the congress can do what it wants on a treaty.

http://www.international.gc.ca/trade-agreements-accords-commerciaux/assets/pdfs/eli-01.pdf

On a second and serious note even with inter country arbitration US has been on the losing side many many times at WTO. We don't even have a corporation on the other end in WTO arbitration!

You assume your solution is ok with all corporations in the world.

Why? (0)

Anonymous Coward | about a year and a half ago | (#43158563)

Why do all these companies think they can control the things you buy AFTER you buy them? After the phone is sold to the network, Korea shouldn't have a damn thing to do with the phone.... all they did was build the damn thing. How do patents become involved? It's not like we are MAKING something that is already patented. Seriously, there should be ZERO problems with an issue like this. Just another reason why my own government can't pay its bills, because they are idiots.

Not a treaty (1)

mbone (558574) | about a year and a half ago | (#43158587)

These are agreements, not treaties (the pesky "A" in the KORUS FTA). They have not gone through the Senate as treaties. There was legislation to approve the agreement, which says [infojustice.org]

“No provision of the [KORUS] Agreement, nor the application of any such provision to any person or circumstance, which is inconsistent with any law of the United States shall have effect.”

These agreements themselves are, as I understand it, the equivalent of a Presidential executive order; subject to being canceled at the stroke of a pen.
If they limit the President, it is an excuse, not compulsion.

I am not a lawyer, and this is not legal advice.

Re:Not a treaty (-1)

Anonymous Coward | about a year and a half ago | (#43159053)

http://www.international.gc.ca/trade-agreements-accords-commerciaux/assets/pdfs/eli-01.pdf

Please read up on the Eli Lilly NAFTA tribunal dispute with Canada. FTA's provide for direct action by companies against countries. We have the Investor State disputes which are worth billions of dollars. Countries lose most of the disputes and this is becoming a serious problem for most FTA's. These provisions are not like the other treaties. They have sharp teeth and they bite. Corporations are happy to arbitrate before a three judge arbitration pannel. Most arbitration judges are arbitrators who have been fed and brought up in arbitration proceedings where the biggest players are corporations. If you have worked all your life for corporations and you are brought in to decide a case between a Country and a corporation where do your loyalties lie? It's a specious argument that the congress can do what it wants on a treaty.

http://www.international.gc.ca/trade-agreements-accords-commerciaux/assets/pdfs/eli-01.pdf

On a second and serious note even with inter country arbitration US has been on the losing side many many times at WTO. We don't even have a corporation on the other end in WTO arbitration!

On a third related note. US customers are going to pay more for all the protectionist IP measures we are legislating/ dealing with under treaty law. More than half of the IP in the world is generated by foreign corporations and foreign nationals. 50% of patents in America are foreign owned and 80% of copyrights in America are foreign owned. It's a study by the information justice project. There are contributors from Columbia university and American University in this information justice project.

A recent study by infojustice on IP ownership and nationality concludes: "IP policies adopted by [the US] Congress and the [US] Executive Branch may benefit foreign corporations at the expense of US consumers." and " There is absolutely nothing sinister about foreign ownership of firms in IP intensive industries, including foreign ownership of companies originally established in the US. This is to be expected in a globalised economy with multinational corporations and complex cross-border supply chains." and "In such a globalised economy, US policymakers should no longer assume without reflection that the beneficiaries of protectionist IP policies are US firms and, by extension, US workers and shareholders."

http://infojustice.org/wp-content/uploads/2013/03/foreignownrep.pdf

On a fourth but related note, read why the FTA's are not treaties under the US constitution but are binding under international law.
http://digitalcommons.wcl.american.edu/research/34/

Re:Not a treaty (0)

Anonymous Coward | about a year and a half ago | (#43159137)

You ignore the next sentence and the investor state arbitration mechanism. It's enforceable under international law. In addition we have the Investor state dispute resolution. Look at the multi-million dollar suit filed by Eli Lily a corporation against the country of Canada. Corporations win most of these disputes in arbitration. There is no appeal from arbitration. You just pony up the money. We don't want Samsung suing US government to enforce treaty terms which are not the law of the land but are better than the law of the land. You will just pay millions in the dispute!

This declaration by the Congress does not alter the U.S. obligations to comply with the agreement. As an international agreement made by the President and approved by Congressional legislation, KORUS is binding international law and any inconsistency in U.S. law may be subject to international remedies.

I'll do what I want with things I possess. (0)

Anonymous Coward | about a year and a half ago | (#43158927)

The US government doesn't speak for the people any more.

It speaks for the corporations.

Fuck the government, fuck the corporations, and fuck
the scum in the House and Senate who are paid to screw
their own constituents.

Easy solution (1)

michelcolman (1208008) | about a year and a half ago | (#43158955)

Just make it legal to unlock phones that were not made in South-Korea, and keep it illegal to unlock South-Korean ones. There, problem solved, everybody happy.

Cell phone unlocking is legal in Canada (1)

mark-t (151149) | about a year and a half ago | (#43159007)

Barring a contractual agreement that is made with your cell phone provider that otherwise prohibits it (which is good for 2-3 years), it is explicitly legal in Canada to unlock a cell phone.

So why can't the USA adopt a similar solution to this problem as their neighbors to the north?

Otherwise, I can foresee a booming business in Canadian border-towns for people living in the states that are also near the border, where they could entirely legally unlock phones for people visiting from the USA (for a price), since it is evidently not illegal in the USA to own or possess an unlocked cell phone, and you cannot, in general, be held liable for doing something that happens to be against the law in one specific jurisdiction when you are not actually in that jurisdiction (or else, for example, people from California who gamble in Las Vegas could get arrested when they return).

the fuck (1)

CAIMLAS (41445) | about a year and a half ago | (#43159055)

Who is so fucking stupid at this point to say "oh, Obama may not actually be able to do anything about it anyway"? This is the administration which has essentially defined saying they'll do one thing, and not doing it. It's also the administration which has said they think it's cool to drone strike its own citizens.

Why the fuck do you think they'd do anything more than placate people at this point? Asinine.

Just abrogate the treaty (1)

gary_7vn (1193821) | about a year and a half ago | (#43159115)

It's done all the time. *see: Geneva Conventions

Treaties are subordinate to laws, not the reverse (3, Informative)

gurps_npc (621217) | about a year and a half ago | (#43159155)

Treaties are LESS powerful than Law, not more so. No treaty can make us do anything at all - countries break treaties all the time (see North Korea).

It is perfectly legal for the President to signa treaty that says "We will send all of our mushrooms to Canada."

Then Congress can pass a law that says "We will not send ANY mushrooms to Canada."

In such a case than it is illegal to send mushrooms to Canada, no matter what the treaty says. Canada can sue us in international court, and that court may assign sanctions to us, but they can not force us to send them all our mushrooms.

Sorry Korea (1)

Skapare (16644) | about a year and a half ago | (#43159189)

Change the treaty terms. Tell South Korea to agree to the changes or the whole deal is off. Oh, and about those troops we have in your land ...

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