Unlocking Consumer Choice and Wireless Competition Act

Floor Speech

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Mr. POLIS. Mr. Speaker, I yield myself such time as I may consume, and I rise in opposition to the Unlocking Consumer Choice and Wireless Competition Act.

I support the sentiment behind this bill, and I support the version that was reported out of the Judiciary Committee. However, unfortunately, an important change that I will discuss to the detriment of this bill was added last week, just prior to this bill being brought to the floor.

The gentleman from Virginia (Mr. Goodlatte) gave some background with regard to why a bill is necessary. Ever since the Library of Congress ruled last year that unlocking your cell phone violates copyright law, there have been a number of us on both sides of the aisle who have worked to ensure that consumers have the right to unlock their wireless devices and use their property as they see fit.

I am proud to be a cosponsor of Congresswoman Lofgren's bill, the Unlocking Technology Act of 2013, which gives consumers the right to unlock their devices on a permanent basis.

Before I came to Congress, I was an entrepreneur who started a number of businesses, and I understand firsthand the importance of allowing a free market to thrive and to create a positive environment for businesses and consumers alike.

Allowing consumers to unlock their cell phones, which are their own personal property, can spur competition, allowing new start-up carriers to succeed, lowering prices, and increasing service options for all cell phone users.

To be clear, this is a separate issue from being contractually bound to use a certain provider for a certain period of time. Many Americans choose to enter into a long-term contract in exchange for discounts or free cell phones.

That is not the issue being discussed today, and I don't think there is a problem from either side of the aisle about those consensual contracts.

Rather, we are talking about unlocking cell phones that are not contractually bound to a certain service provider. This has been an issue within our trade agreements.

I have recently drafted bipartisan letters to the United States Trade Representative, with Representative Massie, expressing concern that the leaked text of the Trans-Pacific Partnership agreement would potentially make any permanent fix to unlocking cell phones illegal.

Now, this bill is not a permanent fix. This bill would make clear congressional intent consistent with the optional agreement between the companies that they have reached. However, the last-minute change that was made in this bill, different from the bill that was passed out of committee, puts a real poison pill in this bill for consumer advocates, such as myself.

The bill adds the language that nothing in this subsection shall be construed to permit the unlocking of wireless handsets or other wireless devices for the purpose of bulk resale or to authorize the Librarian of Congress to authorize circumvention for such purpose or any other provision of law.

Now, while this gives, again, at least a patina of deniability that the bill is making a statement in one way or the other, the statement certainly implies that Congress believes that bulk unlocking is, in fact, illegal.

Now, why is bulk unlocking important? When it comes to the actual technical skills necessary, many consumers are not going to be unlocking their phones themselves. There needs to be a market in unlocked phones for consumers to have the full ability and to be empowered to choose the provider of their choice.

This bill does weigh in, with congressional intent, against the creation of a dynamic marketplace that increases consumer choice and options.

I think, without this clause, this was a bill that made it clear that we can't use the Digital Millennium Copyrights Act to interfere with an issue that is unrelated to copyright, but with this clause, it suggests that perhaps the DMCA's clauses can be used for noncopyright issues if, perhaps, somebody doesn't like the motive behind the unlocker.

So, as a result of this change, a number of organizations have withdrawn their support: iFixit, the Electronic Frontier Foundation, Public Knowledge, Generation Opportunity, and FreedomWorks.

I hope to be able to continue to work with colleagues on both sides of the aisle to improve this bill, but with the current language, I do not believe, at this point, that this bill is a step forward for consumers.

I reserve the balance of my time.

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Mr. POLIS. Mr. Speaker, I yield myself such time as I may consume.

In listening to the gentleman from California (Mr. Issa), there was a discussion of to what degree does this language interfere with potential and existing business models, and I agree with them. There are many workarounds. I think the danger here is invoking the language of copyright in an unrelated area.

To quote from Public Knowledge: this new language, even if Congress believes that bulk unlocking is a problem, it is clear that it is not a copyright problem. Just as individual unlocking is not a copyright problem, a bill designed to scale back overreaching copyright laws should not also endorse an overreach of copyright law.

I have a full statement from Public Knowledge that I will submit for the Record, Mr. Speaker. And as put by the Electronic Frontier Foundation, by expressly excluding bulk unlocking, this new legislation sends two dangerous signals: one, that Congress is okay with using copyright as an excuse to inhibit certain business models, even if the business isn't actually infringing on any of its copyrights; and, two, that Congress still doesn't understand the collateral damage section 1201 is causing.

For example, bulk unlocking not only benefits consumers, but it is also good for the environment. Unlocking allows reuse, and that means less electronic waste. I will be submitting the Electronic Frontier Foundation statement into the Record.

Again, the bill, as it passed committee, didn't weigh in on these matters of bulk unlocking and was satisfactory to consumer advocacy groups, including those that have now come out in opposition to this underlying bill.

Many of the arguments that the gentleman from Virginia (Mr. Goodlatte) made about the potential use of phones for criminal purposes may, in fact, be valid arguments and may, in fact, deserve policy responses, but not within the realm of copyright law.

They deserve appropriate attention within the realm of criminal law and perhaps might prevail upon the expertise of both of my colleagues from Virginia, who know far more about these matters than I.

But if there need to be harsher penalties or more enforcement within criminal law with regard to the illegal use of cell phones, whether locked or unlocked, or illicit transactions, that would be an appropriate venue.

But invoking copyright law is a very dangerous precedent for an unrelated area. We did reach a bipartisan consensus on this bill in July, but at the last minute after the bill was marked up and reported out, this new language was added to the bill that would have negative effects on consumers' ability to unlock their phones.

The new language specifically states that the bill does not apply to bulk unlocking. Now, that signals that Congress believes that it is illegal for companies, including many small businesses and start-ups, to unlock cell phones in bulk, again, as Mr. Issa pointed out, not binding language, not something that immediately would be used to prosecute a small business, but it would create greater uncertainty--not less uncertainty--around unlocking of cell phones in bulk, which could make it more difficult for consumers to buy an already unlocked, used cell phone. Again, since many consumers lack the technical expertise themselves to unlock cell phones, we want to ensure that they have availability to purchase unlocked cell phones and use them with the carrier of their choice.

Again, this is an inappropriate use of copyright law to bar small businesses and large businesses from unlocking devices when it has nothing to do with making illegal copies of protected works, the purpose of copyright law. Again, if there is a criminal problem, we should address that within the realm of criminal law and enforcement, not within the realm of copyright.

My colleague, Congresswoman Lofgren, offered compromise language to Chairman Goodlatte, but she reports back that this language was rejected because it was provided too late in the process. Again, I wish that Congresswoman Lofgren and others were brought in earlier in the process. I think there was the general assumption among the advocates on my side of the bill and that encourage more consumer choice that the bill, as reported from committee, would be the bill that was considered on the floor, as is traditionally done.

Unfortunately, we are not voting on that bill that had that bipartisan consensus in committee. The bill has changed, and the bill now can be perceived as picking sides with regard to congressional intent of application of copyright law for bulk unlocking, something that many of us see as a negative precedent with regard to consumer choice and overreach of using copyright law to protect incumbent advantages.

But, Mr. Speaker, it is never too late to reach a compromise. There is no rush to bring this bill to the floor today. There is a temporary agreement in place which offers consumers the same protections that are considered under this bill, and I hope that the chair and ranking member consider working to improve this bill so that it can pass this body unanimously. It doesn't need to be a controversial bill.

I fear that the bill currently before us, while, again, it enshrines some of the current protections that protect consumers that Mr. Chaffetz talked so passionately about, also, unfortunately, weighs in in applying copyright law in an unrelated area that can have the effect of restricting consumer choice.

I reserve the balance of my time.

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Mr. POLIS. I yield myself such time as I may consume.

Again, there seems to be some strong, bipartisan consensus here that there remains more work to be done. As Representative Chaffetz said, we do need a long-term solution. We need to ensure that any solution we enter is not compromised by our Nation's trade agreements to ensure that consumers are protected in control of their own devices in choosing the plan that they desire.

The language in question that was added after the bipartisan consensus was reached in committee is not operative language. It is not language that criminalizes something that wasn't criminal before or proactively bans the bulk sale of phones. What it does explicitly do is establish some degree of congressional intent.

Perhaps this colloquy between the two gentlemen from Virginia helped roll back a part of what could be read in the congressional intent of this language, and I am appreciative of that effort. However, congressional intent could, nevertheless, be construed that there is an imprint, there is a congressional desire to use a more restrictive view of copyright, one in which copyright laws can be used to ban business practices that have nothing to do with making illicit copies of protected works.

Copyrights are a very important area of law. It is meant to protect the creator of a work from having their work ripped off and sold and others profit at their expense. However, it is difficult to see, and this is why so many of us were critical of the Librarian of Congress' initial decision. It is very difficult to see what the nexus is between unlocking cell phones and copyright.

By adding this language in, it adds some degree of congressional perception that copyright law can be what many of us feel to be abused in this manner that reduces consumer choice and does not protect any legitimate creator of a work. Again, to the extent there are concerns from police and law enforcement officials with regard to how unlocked or locked cell phones are being used for transactions that are otherwise illegal, that is a question of criminal law and enforcement and something that I would hope to be certainly supportive of efforts within Judiciary or Homeland Security or other committees to ensure that we reduce crime across all of those. But let's not give the court's ruling on these actions a reason to think that perhaps Congress condones them.

Again, having my colleagues on both sides of the aisle on the Record talking about how this bill is simply a first step and how we need to go further and, of course, not backing away from the initial committee markup of the bill, it is certainly also helpful in establishing congressional intent. And that is really what we are talking about here. We are not talking about binding language where before this bill passes somebody doesn't go to jail, after this bill passes they do. We are talking about potential use and precedent going forward with regard to how copyright law can, from my perception, be misapplied to reduce consumer choice in areas that are unrelated to the purpose of copyright protection.

That is why I continue to stand in opposition to this bill, certainly appreciating the step forward of enshrining in law potentially that it is no criminal penalty for an individual unlocking their own cell phone. But, again, we want to make sure it doesn't happen at the expense of moving the entire discussion in the wrong direction.

An opinion in yesterday's L.A. Times was headlined, ``The House's cell phone unlocking bill: Thanks but no thanks.'' I would like to submit the L.A. Times op-ed into the Record, Mr. Speaker.

I reserve the balance of my time.

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Mr. POLIS. Mr. Speaker, I am prepared to close, and I yield myself the balance of my time.

I am heartened by the discussion on both sides of the aisle with regard to the path forward. I wish we could be at a better place today. I think we had a bill that was reported out of committee that would not have engendered, I don't believe, any degree of controversy here on the floor of the House.

We have now moved to a place where the bill does invoke some degree of appropriate controversy and some degree of appropriate opposition. I would advance that it is never too late to reach a compromise, either before this bill is voted upon--perhaps my colleague, Mr. Goodlatte, will be willing to consider Ms. Lofgren's language change--or after this bill passes. I think that we would all agree that this issue is not one in any way, shape, or form that is being put to bed here today.

I would hope that, as a guiding principle, Members on both sides of the aisle look to consumer choice and the power of markets to achieve the best outcome and ensure that incumbents don't seek to co-opt copyright law to the detriment of our economy and the detriment of consumer choice.

Again, this bill has language that can be construed as applying copyright law in another area and having a congressional blessing to do so, which is why I encourage my colleagues to join Electronic Frontier Foundation, Public Knowledge, Generation Opportunity, FreedomWorks, and iFixit, and some of those very organizations that were in the forefront of proposing that we pass a bill that allows unlocking that have since withdrawn their support from this bill because of the last-minute changes, which I saw for the first time yesterday and that I wish this House had a bigger opportunity to vet, perhaps bringing this bill forward under a rule if the suspension motion fails.

If a third of the Members of the House oppose, we would have an opportunity to remedy this bill under a rule that was hopefully structured to allow for compromise language that would then allow the bill to proceed with near unanimity. I hope my colleagues on both sides of the aisle see that as an opportunity, certainly not as a rebuke to the chair and ranking member on the committee. We appreciate the direction and the intent behind this bill, their desire to make sure that Americans know that they are not under duress or a criminal threat if they are unlocking their own cell phone. That is a sentiment that both the chair and the ranking member have echoed passionately, but I think we can do better with regard to ensuring that this bill is also not a precedent for the use of overreaching copyright law and a congressional blessing to do so in a way that hampers the trade, the bulk trade of unlocked cell phones which offer great potential benefits to the marketplace and to consumers.

So I urge my colleagues to vote ``no'' on this suspension bill, to consider working with both sides to get to ``yes,'' and to move in a direction that we look at as a guiding principle, ensuring that consumers and the marketplace are allowed to fully operate without the co-option of copyright law to protect incumbents.

I yield back the balance of my time.

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