EFF clarifies (somewhat) legality of unlocking and jailbreaking in the US

With a likely new iPhone jailbreak coming this Superbowl Sunday and unlocking phones’ DMCA exemption expiring this weekend, a lot of us don’t know where they stand with regard to the law. If you are in Canada, for example, the government is moving toward passing laws that require carriers to unlock phones and cap early termination fees. Must be nice.

In the ‘Home of the Free’, things got a lot murkier with the expiration of the DMCA exemption last weekend. So, does that mean you can jailbreak? How about carrier unlocking? The Electronic Frontier Foundation says:

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.

So, Jailbreaking is cool. At least for another few years. Enjoy your Superbowl jailbreak.

Carrier unlocking is murky, but it appears that phones bought before last weekend are fair game for unlocking. Go nuts!

But, new phones? It sounds like the risk is on the “unlockers” or the people who do the unlocking.

More likely, wireless carriers, or even federal prosecutors, will be emboldened to sue not individuals, but rather businesses that unlock and resell phones. 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.

What’s interesting is a cottage industry has formed around unlocking done by actually getting the carriers to unlock your phone. For instance, friend of the site, ChronicUnlocks is still in operation in the United States, and we’re hearing nothing but good things from readers who’ve bought unlocks. The site says:

How does your unlock method work?
If you have an iPhone, you just submit your order for the relevant service, and using just your IMEI we are able to get an unlock pushed to your device. No software modifications are required (although if you have a device other than an iPhone 4S or iPhone 5, you’d need to restore to complete the unlock process). If you have a different type of device, we will give you a ‘code’ to use to unlock it.

I see many iPhone unlock services on the web. What method do you use to accomplish this?
Our method itself is confidential, but we take pride in the fact that instead going the ‘cheap’ route like some of our competitors (such as illegally buying access to hacked cell carrier logins!) which are sketchy and easily traceable (risking re-lock of your phone), our method gets the IMEI of your iPhone into the database of your carrier (as well as Apple) in a legitimate and secure way.

It would seem they’ve discovered a way to remotely add phones to the Apple/Carrier databases, which unlocks phones when activated, so nothing on the phone needs to be touched. We’re not sure how legal any of this is, however.

Go read the full post at the EFF. We’re not lawyers. They are.