Cell Phone Unlocking Debate Highlights Trade Negotiation Process Problems

[Commentary] The issue of cell phone unlocking has been hot for the past month. The White House response to the over 100,000 person petition to allow for the unlocking of cell phones has led to a flurry of legislative proposals in Congress and broad interest in a quick solution to the issue. Public Knowledge has argued that this is an opportunity for Congress to do two things: First, make the exemption for cell phone unlocking permanent by including it the current statute; and second, begin a broader conversation about what other reforms to the Digital Millennium Copyright Act (DMCA) should be considered.

Public Knowledge has also made the strong argument that the concerns raised about free trade agreements should not stop Congress from doing its job: to set the policy of the United States. The United State Trade Representative (USTR) can always be instructed by Congress to update our trade agreements. However, the concern over conflicting with free trade agreements highlights a larger concern about how Congress has lost control over parts of its role as the creator of US policy.

The United States must stop legislating through trade negotiations. USTR negotiations processes notoriously lack transparency and do not include all stakeholders. While consumers and public interest groups are often kept in the dark as these are negotiated, it is not uncommon for corporate stakeholders to have opportunity to join trade delegations for treaties and trade agreements. It is no wonder that the intellectual property sections of our agreements do not include a process for updates to the exemptions list. Content Industry advocates such as RIAA and MPAA would see any such updates as an invitation to other exemptions and broader discussions about reforms to the DMCA that allow consumers to other pieces of technology that they purchase in other legal ways the consumers want. Public Knowledge has documented this concern recently through the Trans Pacific Partnership treaty negotiations. Instead, the public is left in the dark as these agreements are negotiated and forced to accept them completely, or not at all.