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After the tragic and untimely death of Aaron Swartz, we are all going to have to do a little bit more to make up for his loss. If he was still alive, I suspect I'd be receiving a letter from him about this very important development because our rights in Cyberspace are under attack again. Since he's not, I'll take up some of the slack by alerting you to this very important attack.

As of Sunday any iPhone, Blackberry or Android you purchase will be a lot less yours than it was the day before. Sunday it became illegal for you to "unlock" your smartphone. In two years it will also be a crime to "root" or "jailbreak" your smartphone. From the Atlantic




PENALTY: In some situations, first time offenders may be fined up to $500,000, imprisoned for five years, or both. For repeat offenders, the maximum penalty increases to a fine of $1,000,000, imprisonment for up to ten years, or both.*

So what does that mean in little words?

As you are no doubt already aware, your smartphone is nothing less than a computer in your pocket, in fact, together with the tablet, they represent the fastest growing segment of the computer market.

All computer operating systems have a top-level administrative user that has "rights" to do anything on the system, such as delete or modify files that the ordinary user doesn't have "permission" to access, such as system files.

In the past, just about any computer system you were likely to buy gave you access to these administrative rights. In the MS Windows PC's this "super user" is called the Windows Administrator, in UNIX systems, which includes Linux, the Mac OS, the iPhone and Android, this super user is known simply as "root."

"Rooting" a phone simply means making available this super user so that you can make software modifications to the computer in your phone that you otherwise wouldn't be able to make. All computer makers make root access a special case because it is really easy to screw up your computer or phone if you wield those powers without knowing what you are doing, but before smartphones, you always got this "master key" whenever you bought a computer.

Smartphone makers, on the other hand, have generally made this super user completely unavailable. That is why it is also called "jail breaking" your phone when you do make it available. Beyond the possibility that you could really screw up your phone, it makes it possible to "un-lock" your phone's dependence on a single carrier and take it to the competition. That is one of the main reasons the major carriers have tried to make it technologically impossible and, having failed at that, have now used their clout with the government to make it illegal.

Beyond the freedom to take your smart phone to a different carrier, why would you want to "jail break" your smartphone?

One of the principal reasons sophisticated users "root" their phones is so that they can delete those apps that the carriers force on you that you may not need or want, such as Amazon MP3, Amazon Kindle and Blockbuster. They take up space and smartphone resources but they make the carriers money so they make it so you can't delete them, unless you can get root access.

There are also a lot of 3rd party apps out there that can be installed only if you have root access.

Finally, there is the question of privacy - especially from government snooping. Friends in the phone security business tell me that they can't secure iPhones or Blackberries. They can only secure Androids because they are open source, meaning we know exactly how they work and we can secure them. Provided, of course, that we have root access.

I know that there has been at least one other diary on this law. I wrote this dairy because I think more light needs to be shined on this law that will slip under most people's radar.

You see its a lot more than "The most crazy new law of 2013" or an attempt to keep you from jumping carriers with your new smartphone.

It is the first step in taking away rights that we have always taken for granted when we purchased a computer and a big step in taking away our control over the technology we use everyday.

The Electronic Frontier Foundation has also published an article on this today:
Is It Illegal To Unlock a Phone? The Situation is Better - and Worse - Than You Think

January 28, 2013 | By Mitch Stoltz
Legal protection for people who unlock their mobile phones to use them on other networks expired last weekend.  According to the claims of major U.S. wireless carriers, unlocking a phone bought after January 26 without your carrier's permission violates the Digital Millennium Copyright Act (“DMCA”) whether the phone is under contract or not. In a way, this is not as bad as it sounds. In other ways, it's even worse.

What changed? The DMCA prohibits "circumventing" digital locks that "control access" to copyrighted works like movies, music, books, games, and software. It's a fantastically overbroad law that bans a lot of legal, useful, and important activities. In what's supposed to be a safety valve, the U.S. Copyright Office and the Library of Congress have the power to create exemptions for important activities that would otherwise be banned by the DMCA. In 2012, EFF asked for - and won - exemptions for jailbreaking or rooting mobile phones to run unapproved software, and for using clips from DVDs and Internet video in noncommercial vids. Consumers Union and several smaller wireless carriers asked for an exemption for unlocking phones. The Copyright Office granted their exemption too - but sharply limited the window to just a few months.

First, the good news. The legal shield for jailbreaking and rooting your phone remains up - it'll protect us at least through 2015. The shield for unlocking your phone is down, but carriers probably aren't going to start suing customers en masse, RIAA-style. And the Copyright Office's decision, contrary to what some sensational headlines have said, doesn't necessarily make unlocking illegal. More...

So those who have pointed out that "unlocking" is not the same as "jail breaking" or "rooting" are correct. Both are deemed illegal by the draconian DMCA.

As of yesterday "unlocking" your phone became illegal but your "right" to gain full access to the phone you legally own will expire in 2 years if nothing is done.

Also the EFF points out that:

If a court rules in favor of the carriers, penalties can be stiff - up to $2,500 per unlocked phone in a civil suit, and $500,000 or five years in prison in a criminal case where the unlocking is done for "commercial advantage." And this could happen even for phones that are no longer under contract. So we're really not free to do as we want with devices that we own.
So this rule applies even when the phone is no longer under contract and you have fulfilled your legal obligation to the carrier who subsided your purchase.

Bunny Huang has put out a petition supporting the EFF on this, 27143 people have signed it so far:


You bought it. You own it. Tell the Copyright Office: let me install whatever software I want on my phone, tablet, or video game system.Dear Ms. Pallante,

Whether it's patching a security vulnerability or homebrewing video games and apps, people who own smart phones, tablets, and video game systems are finding inventive ways to use and improve their devices. Often users need to gain full administrative access, through a process known as "jailbreaking," to innovate and take advantage of the device's full potential.

But right now, jailbreaking a device can lead to legal threats. That's a vulnerability in the law: we need you to create a "patch" so users who jailbreak devices won't be at legal risk.

Three years ago, the Copyright Office agreed to create an exemption to the Digital Millennium Copyright Act so that folks could jailbreak their smartphones. But that exemption is about to expire. We need you to renew that exemption and expand it to cover jailbreaking gadgets with similar computation potential. These are all siblings to the PC, yet unlocking their potential as versatile and powerful computers is burdened with legal murkiness.

We need these exemptions to conduct security research on devices to help safeguard everyday users from security threats. Furthermore, users of these products benefit from the flexibility to choose their own operating systems and run independently developed software. We need the law to catch up with how people are using technology.

Jailbreaking is helping to make technology better, more secure, and more flexible. Please defend the rights of users.

Thanks for enabling us to keep technology innovative, secure, and focused on the users.

The Tech News Daily wrote last February:
Software is considered to be copyrighted work, so jailbreaking your phone by changing its software could be considered "circumvention." The penalties, at least on paper, can be severe -- up to $25,000 – though it's unlikely to go that far. "I'd say people will be more at risk of getting threatening letters from lawyers," said Mitch Stoltz, staff attorney at the nonprofit Electronic Frontier Foundation, or EFF.

Cellphone tinkerers got a reprieve in July 2010 when the U.S. Copyright Office agreed – based on input from EFF -- to exempt mobile devices from the DMCA. But the exemption is temporary, and will expire later this year if the government decides not to renew it.

Even now, it applies to only "wireless telephone handsets." It doesn't mention iPads and other tablets, though they often run the same software as the phones. It certainly doesn't cover other gadgets such as game consoles. In fact, Sony sued a man named George Hotz in 2011 for jailbreaking the PlayStation 3 to run additional software and for offering downloads on his website that would enable other people to do the same.

(We asked Sony on Wednesday and Thursday to comment, but they were unable to reply in time for publication. The same happened with Apple and Google.)

For that reason, EFF is asking not only for extension of the phone exemption, but also for protection for hacking tablets and game consoles. Stoltz is upbeat. "We're pretty confident that we've shown that there are a lot of legal and valid reasons for jailbreaking devices," he said.

So I think the essential thesis of this diary is correct, if premature. The government is intend on making you a criminal for "jail breaking" or "unlocking" you wholly owned computing device, and will unless enough people raise their voices above the clamor of the carriers for laws that enhance their profits.  

This site sells software to root your Android. I have no connection to it and I'm not recommending that you purchase anything from them, you can do it for free, but it does have some very good info on the advantages of a rooted Android.

I haven't blogged on this subject much since the Arab Spring took over my life. There are some related diaries I've written in the past:

Happy 25th Birthday, Internet Engineering Task Force
EMERGENCY: DKos Must Act Now to Protect Tunisian Bloggers!
        --- this dairy was my first link to the Arab Spring, it developed, oddly enough, from my blogging about Internet freedom!

Free Software & Internet Show Communism is Possible
Let a 100 Websites Blossom, Let a 100 Rooms of Chat Contend!
Bank of America Buying Abusive Domain Names
FCC Internet Rules! It's Not About Net Neutrality
WikiLeaks Revelations Spur UN & US Internet Takeover Plans!
BREAKING - Digital Sit-Ins: The Internet Strikes Back!
Cyber War Report: New Front Opens Against Internet Coup d'état
Operation PayBack: 1st Cyber War Begins over WikiLeaks
The Internet Takeover: Why Google is Next
BREAKING: Goodbye Internet Freedom as Wikileaks is Taken Down
BREAKING NEWS: Obama Admin Takes Control of Internet Domains!
From update to my diary of 19 Nov 2010:

But not to worry. Even if COICA passes the House and Senate and is signed into law by Obama, the DailyKos won't be affected. Not at first. It will be a death of a thousand cuts. First they will come for because it's such an obvious target, and we can blog about that. Then they will come for WikiLeak, which is hosted by thepiratesbay servers, because not only are they disseminating materials in violation on copyright, they are threat to national security, and we can blog about that. By the time your bookmark for the DailyKos returns, "Server Not Found", they'll be no place left to blog.

UPDATE: VICTORY for now!!!!

I just receive this update from Aaron Swartz of

Clay -- big news! Yesterday the Senate Judiciary Committee voted unanimously to send the Internet blacklist bill to the full Senate, but it was quickly stopped by Sen. Ron Wyden (D-OR) who denounced it as "a bunker-buster cluster bomb" aimed at the Internet and pledged to "do everything I can to take the necessary steps to stop it from passing the U.S. Senate."

Wyden's opposition practically guarantees the bill is dead this year -- and next year the new Congress will have to reintroduce the bill and start all over again. But even that might not happen: Dianne Feinstein (D-CA), Hollywood's own senator, told the committee that even she was uncomfortable with the Internet censorship portion of the bill and hoped it could be removed when they took it up again next year!
This is incredible -- and all thanks to you. Just a month ago, the Senate was planning to pass this bill unanimously; now even the senator from Hollywood is backing away from it. But this fight is far from over -- next year, there's going to be hearings, negotiations, and even more crucial votes. We need to be there, continuing to fight.

Stop Internet Blacklist Bill Now!
Sweet Victory on Internet Censorship: Senate Backs Off!
Internet Engineers tell the Senate to Back Off!
Why is Net Neutrality advocate Free Press MIA?
Obama's Internet Coup d'état
Julian Assange on Threat to Internet Freedom
FCC Net Neutrality's Trojan Horse

Would Net Neutrality Law Block WikiLeaks?
Free Press: Country Codes for the Internet?
The Mountain comes to Mohammad
Keith Olbermann's Deception
Court rules -> Google Must Be Evil & Maximize Profits
Where Al Franken is Wrong on Network Neutrality
EFF on the GoogleVerizon Net Neutrality Proposal
Google-Verizon: What is the Free Press Agenda?
End of the Internet As We Know It!
Free Press would make this Illegal!
Will Android make Google Money?
Google Verizon Announce Terms of Deal

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Comment Preferences

  •  Just the whole cell phone thing - (7+ / 0-)

    why have we moved backwards, to a pre breakup of Ma Bell way of doing things?

    Post-Ma Bell breakup, I can buy my landline phone from Company A (which doesn't even have to be a phone company), and buy my service from Company B.

    But cell phones - you can't buy your phone from company A and your phone service from company B.  Why not?  (And yes, I do understand that some carriers have incompatible technology, so I'll make an exception for that.)

    And if the answer from Congress is but, but, security!  I say Congress, how about you being a little more interested in defending 4th amendment and a lot less interested in infringing on it.  

    Republicans: if they only had a heart.

    by leu2500 on Tue Jan 29, 2013 at 09:01:40 AM PST

    •  minor nitpick (10+ / 0-)

      You can buy a cellphone separate from the service, you just have to pay full price for it rather than taking the subsidized deal that comes with a contract for the service. That phone can be purchased already unlocked and used with any carrier.

    •  check out Android Central for better info: (10+ / 0-)
      What is really going on?

      The first thing to realize is that if you bought your phone before today, none of this applies. The conditions and terms you agreed to when you bought your phone will still apply. Anything up until now is grandfathered in. But what about phones you'll buy tomorrow and beyond?

      Well, unlocking phones to use on a different carrier without permission is now against the law. That's pretty crappy, but as the CTIA blog points out, this is no different than your car. Until you're finished paying off your loan for it -- and that's really what a smartphone subsidy is -- you're not allowed to transfer title without permission from the lien-holder. When you buy a subsidized phone on contract from your carrier, it is the lien-holder, and it's up to the carrier when and where you get to use it. Read the fine print on your car loan -- I'll bet you never knew the finance company could tell you you're not allowed to park your car in a place they don't like. Of course, that's not enforced. But that's not to say it can't be used against you in court.

      Now, AT&T and T-Mobile and any other carrier can do the same thing. Does that suck? Yes, but it's a price you pay for getting the phone subsidized (financed).

      What this means is that if you buy your own phone (think of it as paying cash for your car instead of a lease / note) you can choose which carrier(s) to contract with for service, but if you buy a phone at the carrier's point-of-sale, you must not change carriers and try to keep the same phone.

      The phones can be had without the copyrighted cell-carrier software.
      If you have a phone bought before January 26, 2013, you're exempt.
      If you have a phone for which you paid full price, you're exempt.
      If you have a phone for which your contract has expired, you're exempt.

      If you're a tinkerer / early adopter / modder and you're running e.g. Cyanogen Mod instead of stock Android (or, FSM help you, the crippled versions of Android the carriers put on the phones to help them sell bloatware and track your phone use) ... this new rule has nothing to do with you.

      Diarist really should change the title, by the way. "Jailbreak" is not the same thing as "unlock."

      LBJ, Lady Bird, Anne Richards, Barbara Jordan, Sully Sullenberger, Ike, Drew Brees, Molly Ivins --Texas is no Bush league! -7.50,-5.59

      by BlackSheep1 on Tue Jan 29, 2013 at 09:18:21 AM PST

      [ Parent ]

    •  Sure you can. (0+ / 0-)
      But cell phones - you can't buy your phone from company A and your phone service from company B.  Why not?
      You're free to buy your phone from company A and your service from company B.

      You just have to pay full price for your phone, instead of having the price subsidized by company A in return for signing a long-term contract.

      "When I give food to the poor, they call me a saint. When I ask why the poor have no food, they call me a communist." --Dom Helder Camara, archbishop of Recife

      by JamesGG on Tue Jan 29, 2013 at 10:49:38 AM PST

      [ Parent ]

  •  Unlock is not jailbreak (11+ / 0-)
    Unlocking a phone frees it from restrictions that keep the device from working on more than one carrier's network, allowing it run on other networks that use the same wireless standard. This can be useful to international travellers who need their phones to work on different networks. Other people just like the freedom of being able to switch carriers as they please.
    Note that unlocking is different from "jailbreaking," which opens the phone up for running additional software and remains legal for smartphones.

    Support Netroots For The Troops with your on-line purchases.

    by MKinTN on Tue Jan 29, 2013 at 09:02:09 AM PST

  •  This was discussed at SlashDot recently (10+ / 0-)

    Jailbreaking is still legal. The only thing not legal is unlocking subsidized phones from their original carrier while they are still under contract.

    •  Here is the (3+ / 0-)
      Recommended by:
      Kane in CA, pgm 01, Papagoose
      •  Thanks for the link (1+ / 0-)
        Recommended by:
        pgm 01

        digging through, here's what i think is the key paragraph:

        Referencing a decision outlined in the Federal Register, Tech News Daily has published an article noting that the window to unlock your new mobile phone in the U.S. is closing. 'In October 2012, the Librarian of Congress, who determines exemptions to a strict anti-hacking law called the Digital Millennium Copyright Act (DMCA), decided that unlocking mobile phones would no longer be allowed. But the library provided a 90-day window during which people could still buy a phone and unlock it. That window closes on January 26.' While this doesn't apply to phones purchased before the window closes, this means that after 1/26/13, for any new mobile phone you purchase, you'll have to fulfill your contract, or break the law to unlock it."
        (emphasis mine)


        Note again, unlocking is NOT the same thing as jailbreaking.

  •  couple of questions... (1+ / 0-)
    Recommended by:

    The source article for this raises a couple of questions for me.

    It suggests that phones are available today that are unlocked out of the box, which I assume would not change under the new rule.  And, if I understand correctly, it is possible to purchase most (all?) phones unlocked if you're willing to pay a higher price and not commit to a particular service provider. So, when you buy a locked phone, you're getting it at a discount, and the price you pay for that is not having access to all the phone's functions.

    And then there's this:

    (Note that unlocking is different from "jailbreaking," which opens the phone up for running additional software and remains legal for smartphones.)
    •  Bill W: Google sells Nexus phones unlocked (1+ / 0-)
      Recommended by:
      Bill W

      out of the box. You pick the carrier, you're not paying extra for your service in order to get the phone at a discount / rebate / subsidized price.

      I suspect that, given Google's financial resources, there will be something coming down the pike soon to change this, as the FUD (fear, uncertainty and doubt) boiling up off this "new rule" is going to have an impact on Google's ability to make money. Google isn't going to put up with that.

      LBJ, Lady Bird, Anne Richards, Barbara Jordan, Sully Sullenberger, Ike, Drew Brees, Molly Ivins --Texas is no Bush league! -7.50,-5.59

      by BlackSheep1 on Tue Jan 29, 2013 at 09:20:43 AM PST

      [ Parent ]

  •  the type of jailbreak that seems to be illegal (1+ / 0-)
    Recommended by:

    would be the type that breaks your contract with the cell phone company. i'm not saying it's a fair punishment, but it's not illegal to jailbreak a phone as far as i can tell.

  •  It is a stupid "law" (0+ / 0-)

    It only covers personal unlocking of subsidized phones under contract.  Once the contract is fulfilled one is free to unlock their phone.

    Even if one unlocks a phone while under contract, they would have to pay a penalty to the service provider if they left before fulfillment (to cover the cost of the subsidy). This then completes the contract, which leaves one free to unlock their phone.

    Then, there is the practice of unlocking a phone remotely, from a foreign country.  How could the US enforce their "law".

    Lastly, is the DOJ really going to run around searching people for unlocked phones then bring cases to fine them $500,000 ?  Not very smart electoral policy.

    In the end, it is a stupid law that is unenforceable.

  •  I'll send you a cake with a zipfile in it. (1+ / 0-)
    Recommended by:
    Clay Claiborne

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