Tampering with Digital Locks: New Laws and Smartphones

It’s a common experience: the smartphone that is supposed to make your life easier and more manageable develops a glitch. You don’t have the time or the money to send it off for repair, but you do have enough know-how to fix it yourself, so you try to do a quick repair. Until very recently, that quick repair would have been considered illegal. The Digital Millennium Copyright Act (DMCA), passed by Congress in 1999, made it illegal to “circumvent a technological measure” that controls access to any work under the DMCA’s scheme of protection. This protection includes any copyrighted material, such that you may not access an encrypted eBook or other material protected by encryption (such as DVDs that may be restricted for use in particular zones). This protection also extends to the code for smart devices.

The Librarian of Congress has authority to issue exemptions to these rules. For instance, those conducting “good faith” research into the security of computer programs or devices may circumvent controls preventing access to copyrighted material. Also, wireless networks may unlock or “jailbreak” smartphones to transfer a device from one network to another. However, these measures do not give consumers control over their devices.

In October 2018, the Librarian of Congress adopted a rule that treats smartphones and similar devices like cars and farm equipment. A previous exemption to the DMCA gives the owners of land vehicles the right to repair them if they break down. Now, smartphone owners and repair professionals can legally hack into a device’s software to correct any glitches. However, just because you can do this legally doesn’t mean that you will be able to – smartphone manufacturers have no duty to make their devices more accessible to consumers. Anti-tampering measures have become increasingly stringent, so these new rules may offer consumers a right without a practical remedy.