You don't need a metaphor. You can use a real life situation:

"I want to go to Europe"

You can't do that next week. Well, you can, but you won't be able to use your phone there without paying ridiculous roaming and data charges.

If you unlock your phone and hop a plane today, you can stop at any mobile phone shop at your destination airport, give them five euro, and they'll give you a new pre-paid SIM card with five euro worth of credit on it.

That's enough to use your phone as much as you like for the duration of your two-week vacation. Top up with another fiver if you want a couple GB of data while you're at it. And you're done. Just remember to pop your old sim back in when you get home.

Travelling the rest of the world is all about picking up cheap local SIM cards in every country you visit and enjoying cheap calls like a local. You're about to lose that.

From some years ago, in pre-smart phone days, stories from Europe would be somewhat transfixing.

'When I became unhappy with my current provider / traveled to another country / didn't want a monthly plan and fixed fee, I simply bought a different SIM and popped it in.'

You mean, you changed your cell service by changing the 'memory card'? You didn't have to pay $40/month (or equivalent) for 90 minutes of phone calls? You're not locked into a 2 year contract? You don't get caught and screwed over with roaming fees (remember those)? (Different SIM card for the different country.) THEY DON'T $0.10, $0.20, WHATEVER PER TEXT MESSAGE?

I'm probably forgetting many of the other "astonishing" differences.

All you needed to do was have an "average" U.S. person talk for 2 minutes with an "average" European about cell phone use, and the American was ready for a change.

P.S. I realize this is sarcastic, but I suppose this change will end up getting someone charged with a felony for "hacking", at the DOJ's or other law enforcement organization's convenience.

Why some years ago? That's what we do even today. I don't think our iPhones are locked, Androids definitely aren't (Greece).

I've been cut off in my hermit cave.

Also, alternatives have been starting to catch on, here. Such as pre-paid plans that offer significant discounts. Also FaceTime, Skype, and whatever else (although these eat into often stingy data quotas).

Many in the U.S. still have little or no clue. But I don't think it's quite as bad as before; also, someone "technically" "gaming" the system isn't as astonishing as it used to be.

Or so it seems, from my cave. Mostly, I'm just more familiar with reactions back at that time.

You can buy unlocked iPhones at apple stores in Canada. I get unlimited minutes and text with chatr. That comes with free long distance, call display, voicemail etc. everything except picture messaging or data.

Chatr doesn't sell microsims. So at the mall, there is a kiosk that will legally cut the chatr sim for $10. Chatr encourages this.

This plan works even if I travel to another city, as long as its a major center.

No contract. They're actually illegal in Quebec. Instead, companies offer the same agreements to consumers, and conscmersd just have to pay back part of the phone price if they leave early.

If you have a discounted agreement that doesnt include a subsidy, you can leave anytime you want.

FYI Chatr is a Rogers subsidiary. They created it specifically to compete[1] with the other cheap services like Wind and Mobilicity. This is why your iPhone works, because it's on the same Rogers network.

[1] Some argue that the only reason they created Chatr was to drive the smaller guys out of the market.

Yeah, I expect that's why they did it. Or at least to keep people in the Rogers ecosystem.

A lot of the smaller guys didn't work in my area, or on my iPhone.

I just wanted to highlight that a big company encourages you to unlock your phone and deface their sim cards. Chatr reps directed me to the sim cutter.

It's funny how different the implementations are, I could never understand on my trips to Canada how a mobile phone could have an area code.

Now, we have our own peccadilloes in the UK. "Free-phone" numbers are expensive from a mobile. Special cheap 'local rate' phone numbers for businesses cost a fortune.

But yeah, that seemed just nuts.

Random Story:

Back in the days (I think somewhere in the 90s) GSM service in Germany was still relatively expensive, I remember my cousin brought back a SIM-Card from Finland and used it for over a year back home. Even including roaming prices it was still cheaper.

Austrian mobile contracts are still cheaper in Germany than German ones. But the Austrian market is special case.

Wait, that's seriously true? All of it?

Yes, but if you foresee that you would need to travel, couldn't you just buy an unlocked phone? (I normally just buy an entirely different phone, a cheap Nokia brick handset, for travel use). This law doesn't prevent people from using unlocked phones, it prevents people from taking advantage of the carrier subsidy.

Carriers agreed to give you a shiny new smartphone for a massively subsidized prize in return for you being locked to their network.

It seems rather exploitative to take advantage of this quid pro quo by breaking free from that agreement. All this law seems to do is to prevent people from taking without giving.

There was a landmark case about this same issue in 1936 concerning IBM punch cards.[1] IBM leased its machines to customers, and they also sold punch cards, which they argued were effectively part of the machine.

The pricing was an important component of their business model. IBM wanted to get the machines into skeptical customers' buildings before they had a chance to be shocked by the sticker price so that they could discover how useful computing really was. The per unit price of punch cards however increased with the volume of punch cards purchased—which arguably made sense if the customers got more value out of each punch card once they got rolling on how to use the machines.

Anyway, the US Supreme Court said that was too bad, and enjoined IBM from dictating that they must be the exclusive supplier for all punch cards as a condition of lease agreements.

The principle here seems like it should even be more clear. Are you leasing you phone, or promising to use purchase their service for 24 months at an agreed rate? You get to pay a hefty cancellation fee if you choose to cancel the service, but you are not required to return the phone.

IANAL, but it seems like the Clayton Act(1914)[2], was pretty clear about "tying", and it was affirmed by the Supreme Court. While that does not mean that cell phone providers need to help you unlock your phone (unless separate legislation affirms that responsibility), it seems both anti-competitive in spirit, and contrary to the doctrine of firs sale to legally prohibit customers from tinkering and developing their own capabilities and uses for their property.

[1] http://www.law.cornell.edu/supremecourt/text/298/131#writing... [2] http://www.law.cornell.edu/uscode/text/15/14

The really interesting thing to me is what (I assume was) one of IBM's biggest customers -- Germany -- for its punch card/punch card machine business was doing with those punch cards.

But you're not breaking your agreement.

You're still paying your monthly bill like a good customer. You're just replacing the SIM for a couple weeks.

You could certainly achieve the same result by buying a second phone just for traveling. But you already have a phone. In the rest of the world (and in the US until tomorrow), that's all the phones you need.

> You could certainly achieve the same result by buying a second phone just for traveling. But you already have a phone. In the rest of the world (and in the US until tomorrow), that's all the phones you need.

If you got your phone subsidized, then no, you don't have a phone. You don't get to unlock this not-paid-for phone the same way you don't get to change out the drive train on a leased car. At the end of the lease, after the dollar buyout, go wild. After your contract is over, unlock away. It's yours, do as you wish.

I believe the carrier owns the phone until you've satisfied your subsidy contract.

Similarly, I believe an unsubsidized phone should come unlocked.

Not quite. You have bought your phone effectively with a loan. It's not rented, it's bought with a loan and you're paying that loan back in monthly fees. You can't give the phone back and receive the part of the loan you paid, so it must be your phone. Leasing is just a special kind of loaning money, where you're loaned money for the sole purpose of purchasing a given product by the same merchant that sells you that product. If the telecom expects that you will use the phone only on their network, they can trivially add a "minimum monthly charge" so they'll cover the cost of the phone regardless. In fact, I believe all of them already do it.

As a country with an economy built around loans (i.e. credit cards and so on), making things bought on credit not really yours seems insane.

No, the carrier does not "own your phone"--they're taking a risk that you'll abide by the contract.

Even if you get out of your contract early, you have to pay a termination fee, which is effectively the remaining part of your carrier subsidy. AT&T is going to get their money one way or another.

Also, going to Europe for 2 weeks doesn't mean you stopped paying your AT&T bill for those weeks, either. It's perfectly reasonable to expect your phone to not be carrier locked.

I wasn't clear. I didn't mean the carrier literally owns your phone. I prefixed with "I believe" intending to convey how it seems to work, not the technical fact. I should have written, "It's as though the carrier owns your phone".

But the technical fact is all that matters. What you "believe" is irrelevant.

I believe Jason's point is that you're still paying off the phone subsidy. Nothing's changed, as far as that's concerned.

You may be avoiding exorbitant surcharges, such as roaming fees.

Well... why are those surcharges so exorbitant?

Pay through the arse. Or toss another disposable phone into a landfill. People are starting to think that "some law" doesn't necessarily make it "right".

When I went traveling, I called T-Mobile and they provided me an unlock code without any bellyaching.

It took me several days to get an unlock code from T-Mobile, for a phone I'd paid for unsubsidized. And, they make a big deal out of the process, and make a lot of noise about possibly being unable to provide unlock codes if they don't have them.

That's not to say T-Mobile isn't better than some other carriers. As I understand it, they are. But, I shouldn't have to ask permission to use my phone, that I paid $600 for, in Mexico for a few weeks, while I continue to pay for my US service.

Making unlocking a phone yourself illegal is anti-consumer and pro-corporate in ways that I find extremely distasteful and it makes me angry that the US state serves corporate interests so much more enthusiastically than individual interests.

----- I want to fight this -----

HN, my brother is just about to relaunch an unlocking site I made in 2002 (mockup here: http://j.mp/WRfm6A).

I really want to help him fight this ruling.

I'm guessing that petitioning the librarian is the best idea. Any ideas or thoughts on how to go about this would be very, very much appreciated.

And if anyone's willing to help, email me (email in profile).

if you paid for the phone unsubsidised, why was it even locked in the first place?

They are locked, by default. I bought it in a T-Mobile store, because my Nexus 1 died while I was travelling and needed something quick (it's an HTC Sensation 4G, which is the worst phone I've owned, possibly ever). Maybe they'll unlock it immediately if you ask them to, I dunno.

Hey I don't know why, but the same happened to me in the UK. Bought a phone outright from Three, then later paid them to unlock it. Silly.

So you can only use it with the vendor you bought it from? I guess the OP means bought with no plan. This is the primary use case for locking.

I went travelling this past December and wanted to unlock my iPhone 5. I was told by AT&T I would have had to wait 2 years before I could get the phone unlocked...

You should have bought an iPhone 5 if you wanted to own one.

I buy my iPhones, and the first time they sync, I get the message, "Congratulations, your phone is unlocked."

As it stands, AT&T owns your iPhone until you finish your contract just like the dealer owns your leased car.

That might be how it works in the US, but why roll over and accept that when literally the rest of the world doesn't.

In Australia, subsidised androids on 2 year plans aren't locked at all, and for iPhone its as simple as ringing the carrier for the unlock code, you can do it the day you get your phone.

They're going to get the full value of the contract anyway, why pay them insane roaming fees too.

I've worked in telco in Australia for a number of years now, we are better off: the phones cost is built into the plan these days (hence why an iphone on a $35 plan is an extra $23 per month).

It used to be worse. They used to come locked, and getting unlocked was an exercise in pulling teeth. Thankfully things are better now.

To those that say it's a lease, it's not: you cannot give the phone back and receive the money you've paid for it. It is your handset. You cannot even request a new one if it doesn't suit you (here in Australia anyway). Unlocking the phone does not cancel the contract: you still pay that monthly fee.

On a lease, you also can't give the car back and receive the money you've paid for it. Nor can you swap the car for a different one. Even if you left the car at the dealer, you'd still pay your monthly lease fee. It's a contract.

Do you pay $300 extra for the privilege? I don't believe AT&T offers unsubsidized discounts.

The reason they gave you a code is because they have competition in unlocking - you could just go to an iPhone unlock website and do it yourself.

Once it becomes illegal to unlock your phone by any other method it won't take long for them to start charging for this 'premium service' or not allowing it at all.

AT&T also has this policy. Sprint and Verizon will not, but CDMA phones don't work in most places around the world anyway.

All it took was one short call to Sprint to get my iPhone 4S unlocked for international SIM cards. Domestic cards still say invalid, but everything else works.

That was about 6 months into the contract.

It all depends on how long you've been a customer, how long you've had your phone, and the status of your current contract.

You are not paying the roaming charges if you unlock your phone. Thus breaking your agreement.

You're also not using their service. Is turning your phone off and leaving it in a drawer for a month also breaking the agreement?

If you turn off the phone and leave it in a drawer you will pay the minimum fees. The phone companies are aiming for the maximum. That is having you go over the limits, pay roaming etc. By letting you unlock the phone it opens the door for always receiving only the minimum. This is what they want to avoid.

next big thing:

Credit card companies lobby to make debit cards illegal

Yes they want you to overspend. Their revenue strategy should not depend on it.

You could argue that because the phone is locked to AT&T's network, part of the agreement is that you'll use AT&T's service if you take the phone abroad. Basically, by selling a phone that only works on its network, AT&T is bargaining for the right to any international usage of that particular phone, if there is any.

This is a very common contractual scenario--you get a discount for agreeing to only use one particular vendor, to the extent that you have a need for the particular kind of service they provide.

Well, not only are you not using their service, you're using somebody else's service when theirs is available.

As per your binding contract, you agree to only use their service in return for getting the phone at a subsidized price. Their incentive to charge you less for the handset (incurring a loss on the sale) is that you agree to guarantee doing business with them.

And if that's a problem, unlocked phones are still always an option.

"As per your binding contract, you agree to only use their service in return for getting the phone at a subsidized price."

You mistakenly believe that contracts are in perpetuity.

You're suggesting Protectionism. An industry won't innovate or provide realistic pricing based on their actual costs, so you suggest we protect their income through artificial means. Sure, I'd love some protectionism - how big do I have to be before the government will invent some laws for me to make sure you can only use my service, and not yours?

Honestly I'm not suggesting anything. All I'm saying is that this contract is optional. People can buy full price and say fuck-you to the contract. In fact I have gotten iPhones cheaper from AT&T by buying locked and immediately buying out the contract than buying unlocked from Apple.

>In fact I have gotten iPhones cheaper from AT&T by buying locked

In which case I'm sure we'd all consider it reasonable to first ensure AT&T covers it's cost by increasing its contract buyout amount. We're talking here about the price of roaming being artificially high. You step across the border and come back to an inflated bill because of termination 'agreements' between providers.

>Carriers agreed to give you a shiny new smartphone for a massively subsidized prize in return for you being locked to their network.

Another way to look at things is that carriers subsidize the cost of your phone in exchange for you signing up to a fixed-length phone contract with a set monthly price.

Whether or not you can unlock your phone really has nothing to do with this, as you're committed to the contract either way.

The real issue is what happens after you've completed the 18 or 24 month contract. The carrier recouped their subsidy on the phone and has profited from your contract. But you can't use your phone (which you have more than paid for) on any other network.

>The real issue is what happens after you've completed the 18 or 24 month contract. The carrier recouped their subsidy on the phone and has profited from your contract. But you can't use your phone (which you have more than paid for) on any other network.

I'm not so sure this is true. Carriers will allow you to unlock your phone once your contract is up, and according to this DMCA law, it is legal to unlock your phone if your carrier allows you to do so.

What if the carrier refuses to allow you to unlock the phone? Just because they do today doesn't mean they will tomorrow if nothing compels them to. One cannot assume the good intentions of companies that exist to make money.

The reason such a law is beneficial to carriers is that if they decide to not allow the unlock, the phone is likely only good for their service. If the phone is only good for their service then you might as well renew your contract. Right?

AT&T has been unlocking off-contract iPhones for less than a year (of the over 5 years they've carried it):

http://www.theverge.com/2012/4/6/2930642/att-sim-unlock-ipho...

And who knows if they'll change their mind again in the face of T-Mobile's spectrum refarming?

Unlocking your phone has nothing to do with taking advantage of the carrier subsidy. If you are under contract and "unlocked" you are still bound to pay your monthly fee to your carrier unless you pay the ETF or early termination fee.

It has got everything do with carrier subsidy. If you don't want the subsidy they will sell you a unlocked phone. Problem solved.

No, they they have damaged the free market for phones and phone service using these subsidies to create bundles, so you will pay an inflated price for both your phone and your service.

Whether you buy it locked or unlocked you are being ripped off. They essentially learned it from the US employment/health insurance co-bundle.

Given that several branches have to spend considerable time reviewing just how noncompetitive the wireless industry is, it is kind of absurd for one to hand them another tool to continue competing on everything except price and service.

False. I haven't taken a carrier subsidy since 2007 and I have to jump through hoops to get my phones unlocked.

If you buy a prepaid phone at full price with no subsidy many carriers have policies on how long you must be a customer of theirs before they give you the unlock code.

Additionally, if you buy a used phone on Ebay/Craigslist - aka nothing to do with carrier subsidies - this now requires you to break the law in order to unlock your phone.

Convinced?

No, not convinced. I haven't taken a subsidy on the last 3 iPhones or Android phones and I've had no hoops at all to jump through, neither on AT&T nor on T-Mobile.

The iPhones, I simply demanded at the Apple store to pay full price (this is before the officially unlocked version was being marketed), and the first time I plugged the phone into iTunes, I got a dialog congratulating me on unlocking my phone. This was not widely reported, but always worked.

The Android phones, I can simply pull out the T-Mobile SIM and put in an AT&T one and I've never talked to anyone about it.

Both types work with pay as you go SIMs in Europe. I've never spoken to AT&T or T-Mobile about any of them.

Convinced?

T-mobile prepaid requirement: "you have a minimum of 60 consecutive days of active service with T-Mobile"

http://support.t-mobile.com/docs/DOC-1588

AT&T prepaid is much worse:

http://forums.att.com/t5/Prepaid/Unlocking-PrePaid-Phones/td...

"Requirements for prepaid wireless plans with AT&T branded phones: You have had AT&T service for six months or longer You can provide a receipt or other proof of purchase"

The last line illustrates how carriers are dictating policy in an effort to subvert the secondary phone market.

Even more frustrating in the same link you will see that certain AT&T phones are "ineligible" for unlocking presumably due to some arbitrary restriction.

They'll gladly sell you an unlocked phone, but they won't reduce the monthly rate.

T-mobile is going to stop offering subsidized phones this year--either pay up front or rent-to-own. Their monthly plans will decrease accordingly, so non-contract customers aren't getting hosed.

In fact, this was the key argument made by the copyright office: that the landscape has changed since the original exemption, and now it is commonly possible to purchase unlocked phones in the US (even the weird recent "no unlock ever" phones, such as the iPhone, can now be purchased unlocked), so there is no longer a need for a specific exemption on unlocking.

>it prevents people from taking advantage of the carrier subsidy...Carriers agreed to give you a shiny new smartphone for a massively subsidized prize in return for you being locked to their network.

Aren't you contractually locked? What does locking your phone have to do with your contract?

I'm not sure why there should be criminal penalties if you took advantage of a carrier subsidy anyway. Gaming consoles are a clear example of this. I know XBox used to make up the subsidy on game sales.

att didn't unlock initial iPhones (e.g. 3GS) even after contract was over, not until April 2012 - nearly a year after contract was expired. I wish we had laws declaring that practice illegal. Keeping phone locked beyond the contract seems way "exploitative" to me.

But it's not exploitative to charge monthly fees that high, or require one to pay extra for tethering, or force one to pay extra to blacklist phone numbers from calling one, etc.? If they cannot afford to subsidize phones like that because too many people hate their service so much that they switch, quite frankly; fuck them. I'd much rather they need to compete instead of granting them monopolies and legislating against leaving their service with your phone.

I feel like it's not just about taking advantage of a subsidy. I'm a canadian, so I'm not sure about what happens when you early terminate in the US, but here if you early terminate you have to pay a fee. So you mean to tell me that if I leave the carrier for whatever reason, and pay $250 to do so, I then am not allowed to use this phone again until I come back to the carrier? Sounds more like them trying to take advantage of me.

My carrier didn't subsidize my phone. I bought it from Google, and put my old SIM card in it.

Whats exploitative are the roaming fees levied by carriers.

> "I want to go to Europe"

> You can't do that next week. Well, you can, but you won't be able to use your phone there without paying ridiculous roaming and data charges.

Would it be legal for me to unlock the phone once I land in Europe? Would it also be legal for me to return to the U.S. with said phone that I unlocked over seas?

In a way you circumvented their copyright so I guess yes you would be in trouble when you returned. If people are actually going to get into trouble about it.

Well, MOST of the world has cheap (below $10 USD) prepaid plans like europe, I think japan is an exception where "cheap" calls using prepaid sim cards is very difficult (nearly impossible) to get because the three most popular providers docomo, au, Softbank all have very steep prices for just calls. The situation is even worse for prepaid data plans (~$25/mb using Softbank, insane. Texts were also $2.50/text, so that's not an option either). Their reasoning is to prevent criminals from buying burners. And if your phone is locked then you would have no choice but to rent their phones for about $50/week or $200/month, to put it into a monthly contract perspective.

There are a few exceptions such as buying from other networks besides the big three but those networks don't work in non-metropolitan areas (i.e. outside of tokyo, kyoto, or most major cities), and that's when you might need your phone the most, especially if you can't speak Japanese.

The loopholes: using wifi to gvoice call internationally at $0.11/min in Japan, or payphones, because receiving calls is free. I digress, but to explain the situation, I found a store (Mobal) at narita int'l airport that gave free SIM cards where you "pay as you go" at around $2.50/min (the other stores charge ~$1.50/min but you needed to pay $25 flat fee and then a rate of $1.50/min), but I also bought a portable wifi router so that I could make internet calls through gvoice for $0.11/min (or free calls back home in the U.S.) and you can avoid paying them as long as you can make wifi calls (free wifi isn't as common in japan as everyone thinks).

Not sure that's a great example either- a new SIM gives you a new (local) phone number.

If I'm only overseas for a week (or other short period), and especially if it's for business, it's a whole lot more convenient for me to pay exorbitant roaming fees and still get phone service to my normal number.

Yes, it's cheaper to buy a new sim, and locals can call you a little easier, but in some cases it's not worth it.

The problem that the OP states is that nowadays there doesn't seem to be a lot of real-world practical examples where one would want or need to unlock their phone....

I'm in Thailand for the next couple of weeks and roaming data costs about $8/megabyte. It's too hard to predict and control data usage when you're used to free data. If I forget one background app or get one setting wrong I could end up with hundreds of dollars in charges.

So no - it's not easier to pay roaming charges. It means I can't trust any app unless I fully understand how it uses data. Swapping out the SIM is the only reasonable option.

Of course - the real solution would be sane roaming data charges.

To get normal usage out of my smartphone

When you want to change carrier, or sell your phone.

If you use VoIP you can keep your number even if you switch to a temporary SIM while travelling. Or just tell people to use Skype etc.

You probably can't use your phone for travel if you have Sprint or Verizon anyway, since they don't use the same cellular standards as most of the world. And if you have a typical "tri-band" phone from another carrier you may be unable to use 3G data. It is unfortunately complicated in ways it does not need to be. And don't even get me started on the wonders of APNs when travelling...many customer service folks don't know how to set up data on foreign phones anyway. It should all be automatic.

Exactly why I got my Dinc2 on VZW unlocked. My wife and I spent our honeymoon in Ecuador (beautiful country, btw) and I bought a Claro SIM in a store on the street and was able to call and text home (though Skype was cheaper when in the hotels, being able to call around the country and home if need-be was what I wanted).

Ditto in India over Christmas. I bought a Vodafone card and was able to call home, or would have if my phone wasn't being stupid (yay! for unstable roms!)

Thank you for the clearest explanation so far - I never knew what unlocking was (and never cared so far).

Now I kind of care. But I would oppose making it illegal.

Is it illegal to unlock your phone in France?

If you are asking "why can't I just go to France and do it there", it is generally illegal [edit: my knowledge of this situation for end users--as opposed to those distributing tools--is apparently somewhat flawed; read the responses to this comment] to knowingly do something illegal in the US while traveling in another country so as to evade US law, so if you intend to return to the US you are still somewhat screwed. (Also, FWIW, many of the core people who do iPhone unlocking research are in the US, such as planetbeing and MuscleNerd.)

[edit: The main reason I left this comment was that the other person responding didn't directly address that Spooky23's question was more about why the US citizen can't just wait to unlock their phone until they arrive in France, rather than doing it before the leave. Maybe someone else who sees this, maybe someone who has experience dealing with international travel, can comment on why that is or is not sufficient, given that the extra-territorial illegality argument that I was making is flawed. Is it really that simple? ;P]

IANAL, but I believe you have over-generalized.

There are certainly some U.S. laws that claim jurisdiction over U.S. citizens, no matter where they are in the world.

  * the U.S. expects U.S. citizens (and perm res) to report income anywhere in the world, and pay taxes on it
  * the U.S. claims jurisdiction on underage sexual assault, no matter what country it occurs in
  * the U.S. claims jurisdiction on bribery and corruption

There may be other examples. But in general, AFAIK, the U.S. does not claim jurisdiction on random behaviour in other countries.

http://travel.stackexchange.com/questions/6503/are-there-any...

Thanks! That's actually great to hear! What I normally end up seeing, however, are a bunch of cases where the US not only claims jurisdiction over their own citizens, but even demanding extradition of people from other countries for "helping or encouraging others" to violate the DMCA (one well-known example being Richard O'Dwyer).

Although, such cases that come to my mind were websites, which operate internationally, even if hosted entirely outside of the US. This is obviously a different situation than the seemingly commonly-cited "underage drinking" examples. For the people who build unlocks, though, like MuscleNerd, that is apropos, and those are the people who I mostly spend my time contemplating (although whether the DMCA exemptions actually help them much is another question).

(For individual users messing with their phones, of course, most of this is pointless: there is really no practical chance in hell that individual customers will be taken to court over things like this; it would be more a looming situation for people who offer this as a service at their store, which is quite common at phone repair shops.)

Regarding websites operating internationally, including tvshack.net and O'Dwyer, I think pretty much every country tries to regulate websites that server pages within their borders.

Consider "obscene" speech/media/etc. Consider hate speech. Or look up "google vividown lawsuit" (the defendants all live in the U.S., and no one cared about that fact). And let's not even get into national firewalls (e.g. China, half the Middle East, etc).

With respect to the phones... first of all, it sounds like we agree about the likely odds of individual phone users being taken to court. There's no way that anyone would be individually prosecuted for this, without there being an ulterior motive. Of course, that's a big "without"... the RIAA/MPAA seem to be utterly free of compunction, and there are so very many cases of prosecutors bullying people with obscure drug laws for various incomprehensible reasons. "3 felonies a day" and all that.

Second, yeah, if you run a business in France unlocking phones, and some of the phones you unlock happen to belong to U.S. citizens vacationing, it's not clear that the US would claim jurisdiction over you. IANAL!!! But if you run a business in NYC unlocking phones, yeah, you've got a problem.

Did I mention that I am not a lawyer, and this is not legal advice? 'Cos I'm not.

The US kinda did win: http://www.bbc.co.uk/news/uk-england-south-yorkshire-1654433...

The UK was allowing him to be extradited?? I don't feel so bad about UK libel law applying to US companies anymore (although it hurts everyone).

Also, O'Dwyer had his domain name seized from him by the US somehow.

The law might not cover it, but prosecutors can always try to convict you for it, and it's up to you to fight it in court if you feel that US law should not have jurisdiction over $Something in $Elsewhere.

I doubt most US courts are likely to say, "well we don't have jurisdiction over __that__".

Right; Richard O'Dwyer is actually an example of exactly that (the US didn't even win in the end: the situation dragged out and was settled and the charges were dropped; they sadly, thereby, also did not clearly lose).

As a side note, I have a huge problem with #1.

IIRC, the US is one of a very small number of countries that does this.

If income is generated without using US resources, I don't see why it is necessary for that income to be double taxed.

There are double taxation agreements in place with a very large number of countries so you never effectively have to pay double taxes, you generally have to pay the higher amount since you can deduct the tax already paid in the other country. Check what the regulations are for wherever you are.

While I would believe you over many other people because of who you are and what you do, there's something about your statement that doesn't feel quite right.

Does that mean that if someone from the US that's under 21 travels to a country where the drinking age is lower (or non-existent?), legally drinking alcohol there would be illegal?

Yes. Although obviously, there would most likely not be any consequence from doing so.

This occurs more frequently in cases of sex tourism (most particularly in countries like Thailand), and online gambling.

A few years ago at a previous employer, we had a client in Costa Rica who made online gambling applications who hired us to do an application assessment (preventing cheating and things like that); and it was only after we had started performing the assessment that I happened to inquire in a meeting with our legal department as to whether this was actually legal for us to do.

As a result of that meeting, we had to stop work on the assessment immediately, and not do any invoicing, as our lawyer thought that charging for that assessment would be a pretty clear violation of the law.

Were you doing this work in Costa Rica? Because if not, your example is completely different. You were doing work in the US that the US deems illegal.

And actually, I'm not certain that your lawyers were correct in stating that the work was illegal. It's illegal to operate an online casino in the US. That's not the same as it being illegal to develop software that can be used by an online casino. If the casino in question was serving US customers, then you might be considered an accomplice in a crime. If they were only serving customers outside the US, I seriously doubt you'd be guilty of any crime.

The work was being done in Costa Rica, onsite. And the software was used for their own online gambling site (we were testing the production site, not software that they provided to other people).

I concur that it was probably a more complicated legal matter, but our counsel was pretty confident that this would have been problematic.

The comparison makes more sense, now. :)

Were they allowing US customers to use their site? If so, you were might have been in a gray area. I agree with your legal dept that it could have been problematic either way. Not necessarily illegal, but not worth the hassle.

There's a long whitepaper on the subject here, but U.S. laws by default don't have extraterritorial application: http://www.fas.org/sgp/crs/misc/94-166.pdf

Some laws are explicitly applied extraterritorially; for example, the U.S. has in recent years been prosecuting Americans who travel to other countries to pay for sex with minors, even if legal in the destination country. Drinking when under 21 isn't in that category, though. I have no idea if jailbreaking a phone is. Although, even without extraterritorial application, there might be some kind of U.S. contract violation if the person returns to the U.S. and continues to use the phone.

Interesting! Given that the US has even been attempting to extradite people who aren't even US citizens on DMCA matters (although not with entire success) I am not certain if the powers that be entirely agree on where their rights are (nor arguably will anyone know until they conclusively win or lose such a case).

Internet-related stuff uses a different theory I think, that someone making stuff available over the internet to Americans is basically acting in the U.S. for the purposes of jurisdiction. Same way people who've never been to the UK get sued under UK libel law, because someone in the UK read their article on the internet. The internet makes a big mess of jurisdiction...

Perhaps minorly important: I don't believe the '21 to drink' thing is federal, but rather something the federal government pressures all states into adopting themselves.

> While I would believe you over many other people because of who you are and what you do...

Thanks for the sentiment, but on legal grounds for end users I'm quite often not the most knowledgable ;P. In particular, I don't like travelling internationally, and I now actively avoid it, so I also tend to know less about how things work in other countries than more reasonable people. I work with some people here, however (who are asleep currently) that have spent a bunch of time researching the landscape of international law with regards to jailbreaking, but they probably themselves only focussed on "citizen of that country in that country".

What I will say I tend to know more about than average is "stuff that affects myself and my friends", but the reality is that as an end user of these tools, you really aren't ever going to be prosecuted: I thereby would tend to care more about "what if someone took a trip to a conference in Germany, built an unlocking tool with some friends there, and released it while abroad?", and for that situation I can dig up enough to make it sound sketch (although the extent to which DMCA exemptions help people who provide tools is at least in question).

No it's not. Carriers are required to help their clients whenever they want to unlock their phone.

Does this actually work, though? I was under the impression that most phones sold in the US have incompatible GSM frequencies to those sold in Europe.

It works fine. You just need to make sure the phone you buy is compatible with European frequencies. Many are, including the iPhone and iPad. Both my AT&T iPhone 4G (unlocked) and iPad 3rd gen work fine on a German sim card. The Verizon iPhone 5 also works.

It used to be the case, but very rarely with new phones.

wrong, as stated below...

technically, baudehlo is mostly correct. Most new phones: androids (HTC, Samsung, etc), iphones and whatever, are able to be used around the world as long as they're unlocked and have SIM card slots because these countries are at least using one or more of these frequencies: 850/900/1800/1900/2100, which most new phones are capable of.

The parts that he's wrong would be those few "dumb" phones that companies still sell that aren't able to use the other frequencies, but this is rare. Also, some countries don't use the same "LTE" or "4g" frequencies that the US uses, so if you were to bring your phone there, it would still work, but it be limited to "3g" instead of "4g" speeds, but this varies country to country and it also depends on the network and plan that you choose.

iPhone 5 from Verizon or AT&T will work with European and Australian GSM, but data will be 3G. LTE does not work in Europe. I am assuming Android phones with similar radios to the iPhone 5 will support the same networks abroad.

that's also because there is nearly no LTE coverage in Europe... besides, who needs that for daily use? 3G is just fine ;)

There is some LTE but on odd frequencies. There is lots of hdspa+ or 3.5g though.

I don't know if this help but I couldn't get a plan at some companies in Canada because my french phone had different frequencies.

In Europe where I grew up, we use 900/1800MHz - my original GSM phone wouldn't work in the States when I visited. I had to wait quite a while for the first tri-band phone to come out before I could get one that would work in Canada where I now live where we predominantly use 850/1900. Interestingly 1900 is the predominant band in Canada with 850 being a "backup", but in the U.S. it's determined by regulatory requirements of the location.

A quad-band "world phone" (that supports 850/900/1800/1900) will work in _most_ places (some exceptions) in the world that support GSM. There are some countries that use some obscure bands - Benelux, Russia etc. use 450MHz.

It gets a little more complicated when you get to UMTS/HSDPA/HSUPA... but Wikipedia explains it all quite nicely http://en.wikipedia.org/wiki/GSM_frequency_bands

So your iPhone will work everywhere - at least everywhere that uses at least one of the 850/900/1800/1900 MHz frequencies... if it's unlocked.

You forgot 2100MHz 3g.

2100 MHz 3G/4G are HSDPA/LTE so your phone needs to support HSDPA/LTE as well as being GSM... and then you also get 2100 MHz LTE on CDMA...

On 2G, 2100MHz was only on CDMA, which most of the world (still) doesn't support... so if you've got a CDMA phone and are travelling anywhere outside of a very limited list of some 45 countries (North/Central/South America, Caribbean, Far East), you're SOL.

So like I said UMTS/HSDPA/HSUPA gets more complicated, because then you're not just talking GSM or CDMA... your phone needs to talk UMTS/HSDPA/HSUPA as well as having the correct frequencies and GSM or CDMA.

GSM phones bought in the US work in Brazil, at least.

Yeah, I have switched out SIM cards on my travels.

When I Had a locked phone, I would keep it on Airplane mode for the duration of my trip.

iPhone 5 on Verizon is not locked and you can do this if you desire. I'm not sure about other phones.

Verizon phones don't use sim cards.

Actually, the iPhone 5 on verizon does use a SIM card. When I asked the sales person about it, they said it was for LTE.

That said, the slot is unlocked on the verizon model, so you can pop another micro SIM in there for travel use.

In addition to what others have mentioned, you can buy many CDMA phones for Verizon that also have GSM slots. (These phones are generally branded as "Global").

It requires a sim cutter. I am not sure if anyone in Europe offers pre-paid nano sims, but I'll find out in a few months.

http://www.zdnet.com/nano-sim-redux-using-the-iphone-5-in-th...

looks like 3 does http://store.three.co.uk/SIM_Only/Mobile_Broadband_iPad_Nano...

when the smaller iPhone sims came out a couple years back there was a backlog on pay and go for a few months as they were reserved for their iPhone contract customers, same will happen with these tiny sims.

(I know that says iPad, so I'm extrapolating)

edit: Yes they have Pay and Go nano for iPhone 5 as well: http://store.three.co.uk/view/searchSimOnly?tariff=112

Cutting a normal SIM to size isn't that hard - or buy a SIM punch in advance to do it an a fail-safe way.

They do for LTE on the iPhone 5

Even LTE ones?

I don't think this falls under your principle. I'm all about the doctrine of first sale, but this isn't a simple retail transaction where I fork over a sum of cash for a finished product and that's it. I paid for half a phone, my cell provider paid for the other half, and I have contracted to tie this phone to their service for two years in exchange for them shelling out that $300 up front. Once the two years are up they should be legally required to unlock it, but during the contract period it seems reasonable to keep me from taking full ownership of something that I don't yet fully own.

"You can also pay full-price for a phone, not the discounted price that comes with a two-year service contract, to receive the device unlocked from the get-go." - if the full price phone was locked, your principle would certainly apply, but it isn't, so I don't think it does.

Except that unlocking the phone doesn't free anyone from fulfilling their side of the original contract. So network interests in recapturing their subsidies don't even enter into it.

If I buy an iPhone 5 from ATT and unlock it, even if I pay for a Straight Talk SIM and use that from time to time, I'm still on the hook to pay AT&T whatever monthly fee the contract obligates me to pay.

The only reason AT&T would want me to not unlock my phone, is to ensure they have a captive market for further services that are not part of the contract. Be they usage overages, international roaming, etc.

They'd like my $70/mo for a base smartphone package (with an absurd early termination fee to boot) and to not have to compete for any additional or international service I may need.

Now you can certainly argue that that's a consideration people are willingly agreeing to when they agree to buy subsidized phones on contract. But the argument is that it's a consideration that ought to be explicitly spelled out in the contract terms, rather than enforced by an end-run through copyright law that most people don't know about and have no reason to believe holds any bearing over how they use a device they're paying for.

"Except that unlocking the phone doesn't free anyone from fulfilling their side of the original contract"... it does, the contract now says that you can't unlock the phone. If you do you break the contract.

I thought it was pretty clear that I was speaking in the context of the parent post, about the financial terms of the contract and whether it was reasonable for a network to lock a phone to ensure they recouped their subsidy.

Also, the contract doesn't say anything about (un)locking the phone. An unaccountable executive reading of a largely-obscure copyright law is the only thing saying it. And it isn't being termed a violation of the contract, it's being termed a violation of the law.

The fact that the 'lock' consideration and implications aren't explicitly in the contract is rather the point.

Okay... but I still don't understand your point. You are saying that the contract exists so that telcos can push additional services (over limits, roaming etc.). But there is also an unlocked option. Are you saying that people are not aware of unlocked full-price option? Even if they are not there is an option to buy out the contract any time. And it appears completely reasonable comparing it with original costs. Here is from AT&T: $325 minus $10 for each full month of completed Service Commitment. I would like to know why you think AT&T is ripping people off.

I would like to know why you think I believe AT&T is ripping people off.

Is it that since I think the situation is wrong that I must necessarily think the party that currently stands to benefit is necessarily evil or shafting the other side?

Or is it simply that: because I disagree with you, you assume I hold every position you also disagree with?

I'm sorry, but either of those is simply wrong.

My objection is that an appointed executive can so massively alter the effective terms of private contracts without those terms, or even the law's relevance, ever being reflected in those contracts.

If the 'lock' term was in the contract, I'd be fine with it. I think many people are, in fact, well served by subsidized phones, even when/if they come with 'carrier lock' provisions.

As a minor related concern, I think the situation is worthy of perhaps more-zealous scrutiny, because of the effective duopoly.

Given these terms aren't in the contracts, along with the duopoly's refusal to offer a "byo" phone plan with prices (and early termination fees) that reflect the lack of any subsidy that needs to be recovered, the expected and observed effect is a large distortion in the market toward subsidized phones.

Again, not because I think no-one should buy subsidized phones or they're some sort of 'rip-off', but because I think it's wrong and anti-competitive for the market to warp the cost-benefit of subsidized vs byo.

And having to pay for a subsidy you're not receiving is a very large distortion. Particularly in those places in the US where alternate carriers don't have viable coverage.

Though I'm hopeful the Straight Talk/Walmart partnership bears fruit and begets a trend, so that whole part becomes moot.

Fair enough. I wrongly assumed that you are out with the pitchfork.

But you do fully own the phone, even if you're on a contract. It's not like a mortgage or a car loan; the phone company doesn't have a lien on your phone. The penalty for breaking the contract isn't to give the phone back--it's to pay a termination fee.

This, specifically. If they want to deal with ownership do some kind of leasing agreement... otherwise, let's not have public enforcement propping up the business model.

You do have a point, but it's not like unlocking the phone gets you out of paying your monthly fees. Hell, they should encourage it because they'd still get your subscription fee and you might not even use their service!

I don' think that's what the article is about. If you break the contract you'll have to pay a terminal fee anyway.

I know that here in Canada, even if you buy an iPhone full price from anyone but Apple, it is locked to that vendor. Which seems ludicrous to me.

I thought the newest bill (related to technology, pirating, etc) here in Canada made it legal for Canadians to be allowed to unlock their phones and made it illegal for companies to tie one device to one company.

> I've thought of the gas station metaphor: "Imagine owning a car and legally not being able to fill your tank with gasoline from any vendor you chose."

That's misleading. It's more like: "Imagine if Shell sold you a car at 1/3 of retail and being legally not allowed to refill it at any gas station you choose."

You're leaving an important part of the equation out by ignoring the subsidy, and potentially making people think it's illegal to move phones you buy unlocked for full price between carriers.

In my experience, ordinary people respond quite strongly to the idea that if I'm they're getting a discount on something, there might be strings attached. They don't see anything wrong with it generally.

As stated out by another user this not an accurate metaphor. With yours Shell loses out on potential revenue if you go to another gas station. To buy a subsided phone it is in contract that you must stay with that said company for a period of time. If you break that contract you have to pay full price for that phone. Unlocking a phone does not in anyway alleviate you from your obligation to abide by that contract and pay your bill. Unlocked or not unlocked you still have to pay.

You're making unwarranted assumptions about AT&T's revenue model. Who says staying on the contract for two years is the entirety of the benefit AT&T bargained for? They also benefit from the control over the secondary and overseas market that locking the phones gives them.

Also, you're ignoring the fact that people don't necessarily pay what they owe on contract. AT&T has to deal with this statistically. Some percentage of people will take the discount and not pay the termination fee. It costs money to go after those people and they take a big haircut selling the debt to a collections agency. Maybe they found that locking the phones is a cheaper way of enforcing the contract because most people can't figure out how to get past the lock.

I'm not arguing that unlocking your phone should be a violation of the DMCA. But it's also unfair to leave out the fact that you didn't buy an unlocked phone--you bought, at a huge discount, a locked phone tied to a contract.

Any secondary income is assumed income. A user can not be held liable or to contract for assumed income.

For your argument how is a user unlocking his phone and the user just stop using their phone different? As far as i understand your argument this should yield the same result as far as assumed income. (yes i know this is ridiculous but thats the point) Should it be illegal for a user to simply stop using his phones?

I'm not defending making it illegal, I'm defending AT&T's locking of the phones they sell.

It's not secondary if it's contemplated by the contract. I haven't read AT&T's contract, but presumably it prohibits modifying the software on your phone that way.

Overseas phone usage is expensive because the overseas networks have free reign to decide what they charge. The cost that your carrier charges you per minute/sms/MB is almost exactly the same as what the overseas carrier charges them. AT&T don't make money off overseas usage (which incidentally must be a very, very small portion of phone usage - enough to make it inconsequential).

Here in Europe the EU regularly reduce the maximum price that a network can charge overseas (EU) visitors for calls and texts. The networks are very willing to tell us why european phone usage costs what it does - because of overseas network charges.

You can see why a network would want to charge stupid amounts to visiting networks for usage - the more they charge, the more they make. There's no recourse because you're charging the customers of someone else.

Imagine not being able to buy cheap gas because some economist got it in his head that people were more easily fooled by cheap cars subsidized by marked up gas with an implicit 20%+ interest rate so that you had to buy the gas and car that way even if you were perfectly willing to pay up-front for the car rather than the implicit financing fee via marked-up gas.

There, that's the analogy we should be using.

That is, in fact, almost exactly the model used for razors/razor blades.

The difference is, if I pay full price for an unlocked handset, I still pay the same monthly bill as someone who doesn't. Explain that one.

I look at it from a free-markets perspective. I'm a big fan, you see.

Monopoly-inclined companies hate free markets, because they'd rather not compete fairly. They tend to think of customers not as respected partners, but as their property. We are cows that they are entitled to milk.

In this case they are taking advantage of information asymmetries, a size asymmetry, and human cognitive biases to reduce the freedom in the marketplace. It's bullshit, but very profitable bullshit. Profitable enough that they could buy the laws they wanted.

The problem is this. I buy a phone from Verizon, go through and pay my 2 year contract.

Legally, I am done and all paid for, except I can't switch out to T-mobile now (or at any time), if I wanted. I have to pay the price that Verizon mandates. I'm basically trapped unless I waste money for a new phone.

So basically when gas prices go up, I can't go to a different gas station a mile away that I know to be 50c/gal cheaper. So they all make it go up to fuck me over.

Imagine you have a nice phone your bought and you've finished up the phone contract, and then you move. Your old phone company has terrible reception (or doesn't operate) where you've just moved. So you'll need to change phone companies. But your phone is locked. You are forced to buy a new phone, even if your old phone works fine. If you were legally allowed unlock it, then you wouldn't need to buy a new phone.

The car metaphor does not work.

As many farmers will tell you, it's illegal [1] to burn Red Farm Fuel Diesel in street vehicles, even though it works.

[1] http://webarchive.nationalarchives.gov.uk/+/www.direct.gov.u...

Update: link to more info on red diesel

You could also siphon your heating oil into your diesel car, with the problem that you are not paying for your share of road use.

It also becomes an interesting conundrum with electric cars. In one sense their externalities in terms of environmental impact and geopolitical costs are generally much lower than conventional cars, but they are not paying for their use of public roads.

Of course that also means that if you limit your consideration to the road only, someone driving a lightweight Ferrari that gets 13MPG is really helping out with the cost of roads, even if they are also needlessly contributing a lot of carbon to the atmosphere.

It would probably be offloaded into yearly registration taxes that are based on the amount of damage your car would create on the road. A heavy truck costs more than a lightweight miata or motorbike.

For now, govt. wants to subsidize electric car's introduction to the market, so this tax deduction will probably stay for quite a while.

There are many people that need to travel around all the time. I am a University of Waterloo student and we have a coop/intern program that allows us to travel between US and Canada all the time if we could find a job in the States.

Every four month we will be going back and forth between Canada and US. It is a major PIA that we cannot use the phone between the two countries. Right now I am on contract under Fido in Canada and I am currently in Seattle. I am actually still paying the fees for my Fido account in Canada in order to keep my discounted contract plan. However my phone is now totally useless in the States. The only official way of unlocking is to pay Fido a premium for canceling the plan. I mean if I'm already paying you guys money while I am out of country can't I just have it unlocked? What difference does it make that I unlock now vs unlocking it when my contract is due? Even if I unlock my phone, I will still be on contract which means I must pay the fees for the contract until it ends. If I then decide to switch carrier after unlocking, you can still charge me the same fee for cancelling the plan. It simply makes no sense and it's just screwing around with people like us that need to go out of country all the time.

Maybe fido has different policies, but typically if your phone has the right radios, your carrier will let you "roam", and they charge you for the privilege. This means you should get service in the states, it just costs a lot of money.

I am able to roam in the States, and it's connected to At&t right now. Like you said though, the roaming charges are ridiculous, it basically renders the cellphone unusable in accordance to my normal browsing habits.

If it has the right radios, there are about a million sites online that will sell you an unlock code for $20-40 depending on model. They seem a bit sketchy, but I've never been ripped off on 4 different sites.

Locked phones go to landfills. Unlocked ones keep doing good when you donate or sell them.

You don't want to put all of those dangerous chemicals in the ground next to your drinking water source because of some silly "lobbyist-law" do you?

I've been told before that most Americans have never been outside the country. I never realized "phone unlocking" would be a perspective that would be affected by this isolationism.

I like your gas station metaphor, I don't see any problem with it. It seems conceptually equivalent and the need to gas up your car is nearly universal in the US so it applies to any region or income demographic.

If you own the devices you should do as you please. This would be like someone telling you that you can ONLY use a certain brand on brake pads on your car or only stop at an Exxon brand gas station.

The reason it's difficult is that in principle, there's nothing wrong per se with a company giving you something with terms like this. The problem is that our political environment is corrupt and these big businesses are operating to large degree on what can only be called privilege -- and making this case is very very hard, most people live inside something that might be called "The Matrix."