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US Government May Not Be Able To Fix Cell Phone Unlocking Problem 203

Posted by Soulskill
from the can't-put-that-toothpaste-back-in-the-tube dept.
An anonymous reader writes "We recently discussed what appeared to be a positive response from the Obama administration on the legality of cell phone unlocking. Unfortunately, the Obama administration may not be able to do anything about it. It has already signed away our rights under a trade agreement with South Korea. Lawyer Jonathan Band, who works for the Association of Research Libraries, wrote, 'The White House position, however, may be inconsistent with the U.S. proposal in the Trans-Pacific Partnership Agreement (TPP) and existing obligations in the Korea-U.S. Free Trade Agreement (KORUS) and other free trade agreements to which the United States is a party. This demonstrates the danger of including in international agreements rigid provisions that do not accommodate technological development.'You can read more about this issue in a short eight page legal primer by Jonathan Band (PDF). An interesting, related note that the U.S.-KOREA FTA is possibly inconsistent with our domestic patent/drug law in the Hatch-Waxman Act as well. The trade agreement requires us to grant injunctions until the patent is invalidated as opposed to thirty months under current domestic law."
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US Government May Not Be Able To Fix Cell Phone Unlocking Problem

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  • by vikingpower (768921) <exercitussolus@[ ]il.com ['gma' in gap]> on Wednesday March 13, 2013 @08:13AM (#43158127) Homepage Journal
    There. All is said.
    • Re:IANAL (Score:5, Insightful)

      by FriendlyLurker (50431) on Wednesday March 13, 2013 @09:02AM (#43158441)
      No need to be AL. The TPP is being forced down many countries throats despite many anti-democratic problems [wikipedia.org] by, you guessed it, US special interest groups [truth-out.org], their lobby mouthpieces and owned politicians. The US elite feigned "positive response" to our concern over cell phone unlocking only due to the enormous amount of people who cried out - to many to just ignore this time round. Now they are using the TPP stick that they crafted to beat our demand for democratic review of the law down, and put the masses back in our place. Oh, but sure they had no choice... yeah, right.
      • "The TPP is being forced down many countries throats..."

        BUT... the TPP is not "an agreement" yet, if it ever will be. It is only a proposal (one which the United States actually refused to follow itself, after a bunch of public outcry). So, since it is not yet an "agreement" or treaty, it does not actually block the unlocking of cell phones.

        • I should add that even if it were a treaty, it is pretty hypocritical of the government to use that as an excuse, since drone killings violate treaties all over the place.
    • NO IANAL! (Score:5, Insightful)

      by Greyfox (87712) on Wednesday March 13, 2013 @10:29AM (#43159241) Homepage Journal
      Right, none of that!

      Congress can fix this problem. Congress just doesn't want to fix this problem. See the difference?

  • The US Government has been out-lobbied by Korean lobbyists? Or is Samsung's plan much bigger than Apple thought?

  • by betterunixthanunix (980855) on Wednesday March 13, 2013 @08:18AM (#43158159)

    KORUS does allow for administrative procedures like the DMCA's rule-making to adopt temporary exemptions, but not permanent ones. The challenge before Congress is to devise a permanent exception for cell phone unlocking that does not breach the obligations under KORUS and other similar free trade agreements

    The US constitution allows temporary copyrights; Congress has managed to ignore the spirit of the constitution by extending copyright terms 20 years every 20 years. How about we just do the same with DMCA exemptions?

    • Or why not just make a temporary exemption that only lasts until unix time overflows 64 bits?

      • by rvw (755107)

        Or why not just make a temporary exemption that only lasts until unix time overflows 64 bits?

        Because those DMCA servers don't run on Unix time you stupid! ;-)

      • Because congress is full of 2-bit politicians.
    • The US constitution allows temporary copyrights; Congress has managed to ignore the spirit of the constitution by extending copyright terms 20 years every 20 years. How about we just do the same with DMCA exemptions?

      Technically it is still temporary. You just disagree on how long is temporary. Sort of like those "temporary" portable buildings at schools and the "temporary" Bush tax cuts, you never know how temporary it actually will be.

    • What's the problem? Since with the next update of the phone the unlock is removed as well, it's just temporary anyway.

  • by mangu (126918) on Wednesday March 13, 2013 @08:20AM (#43158169)

    It seems that these days IP legislation tries to swallow everything. Nothing is safe from IP laws.

    It's time to reverse that trend, most of the DMCA should be considered unconstitutional anyhow. If someone sold me a device, why can't I tear it apart to see how it was built?

    Patents and copyrights exist for making sure no one needs to keep trade secrets. The intent of those laws is to let people learn about the technical details behind the technology.

    Having laws that restricts the liberty of learning goes against every principle of a civilized society.

    • by Etherwalk (681268)

      Patents and copyrights exist for making sure no one needs to keep trade secrets. The intent of those laws is to let people learn about the technical details behind the technology.

      Not quite. Patents exist in part to encourage people to share the details behind their inventions, at least in theory. They grant a monopoly in exchange for that. People would share the details anyway where it's self-evident, so it's like we're giving a free monopoly--except you still encourage innovation by paying for development costs. The problem is the monopoly can be disproportionate to the investment and can retard progress and the development of knowledge. In any event, though patents are fundam

  • by Joe_Dragon (2206452) on Wednesday March 13, 2013 @08:24AM (#43158209)

    other countries have laws that phones must be unlocked or the carriers must give out the unlock code.

    We need to end carrier only phones and phones with all the carrier software forced on you that you have to hack your own phone to remove it you should have the choice of how much of the software that you want. Visual voice mail (good), a app that let's you see how many mins / data / txt of your plan that you used and uses there meter (good) other apps not so much.

    • by CastrTroy (595695) on Wednesday March 13, 2013 @08:36AM (#43158281) Homepage
      I really don't see why phones are locked in the first place. You're already tied to the carrier with a legal contract. There shouldn't need to be a technical measure in place to make sure you don't take the phone to a different carrier. If you try to leave before the contract is over, there's already high fees for breaking the contract. If you choose to not pay those fees, it would probably look bad on your credit rating. After your contract term ends, you should be free to do whatever you want with the phone. Actually, If they now have the system in place to block stolen phones, the major providers could probably place the phones from non-paid contracts on a list where they would refuse to allow the phone be used until the contract is paid in full.
      • by Hatta (162192) on Wednesday March 13, 2013 @09:00AM (#43158433) Journal

        Because, fuck you, that's why.

      • by wbr1 (2538558) on Wednesday March 13, 2013 @09:09AM (#43158495)
        This is already done. All carriers keep a list of phones with bad ESN/MEID numbers. THey become bad through being reported lost or stolen, or having an outstanding balance. This even keeps sales of phones between customers of the same carrier down. You cant just buy a sprint phone from someone and expect it to work on sprint, if the ESN/MEID is blacklisted its a no go.
        Carrier lock is simply a way for them to try to abduct more customers. I use abduct very purposefully here.

        abduct [ab-duhkt] verb (used with object) 1. to carry off or lead away (a person) illegally and in secret or by force, especially to kidnap.

        There is no technical or contractual reason to keep you locked. The OP is correct in that you sign a binding legal contract when entering a contract with a mobile carrier, but when that contract is up, they want you to stay, not run off to some n-contract or other carrier with the phone you purchased (albiet at a subsidy) from them. If their contract did not cover the subsidy discount on the phone, then they need to redo their math and stop devices that are now legally owned by others hostage.
        In addition to this however, there is no incentive for handset makers to push to change it. If you cannot continue to use your phone on a carrier you like, what do you do? You purchase a new phone and the handset maker profits as well.
        None of this fosters competition or aids the consumer. It is solely a self serving policy by those in (capitalistic) power.

        • That's what the two-year contract is for -- to amortize the cost of the $600 phone over 2 years while still giving them (Verizon, et al) service profits.

          Fair enough, if that's how the cost plays out so you don't have to pay for a laptop equivalent up front. But you are still buying it, so it should be yours at the end.

          • by wbr1 (2538558)
            My point exactly about the subsidized phoned. And if for some reason they have not recouped their costs for providing the phone at a discount through their contract, that is a failure of their MBAs, not the customer. They chose the terms, not the customer.
          • by Fnord666 (889225)

            That's what the two-year contract is for -- to amortize the cost of the $600 phone over 2 years while still giving them (Verizon, et al) service profits.

            So why doesn't my mobile bill drop to half or less after the amortized phone is paid off?

            • by mrbester (200927)

              For the same reason petrol isn't reduced in price at the pump the day crude prices drop but is increased the day crude prices go up: fuck you

          • That's what the two-year contract is for -- to amortize the cost of the $600 phone over 2 years while still giving them (Verizon, et al) service profits.

            Fair enough, if that's how the cost plays out so you don't have to pay for a laptop equivalent up front. But you are still buying it, so it should be yours at the end.

            You are almost there...

            The carriers are not amortizing the phones. From a legal perspective, the ownership of the physical device is transferred at the start of the contract when the person pays the agreed upon price. Sales taxes on the phone are paid at the beginning, and any future payments are against the service being provided, not the phone itself.

            Therefore, the phone is yours at the beginning, regardless of the terms of the service contract.

            For the phone to be yours at the end, you would have to be

      • by tgd (2822)

        I really don't see why phones are locked in the first place. You're already tied to the carrier with a legal contract. There shouldn't need to be a technical measure in place to make sure you don't take the phone to a different carrier. If you try to leave before the contract is over, there's already high fees for breaking the contract. If you choose to not pay those fees, it would probably look bad on your credit rating. After your contract term ends, you should be free to do whatever you want with the phone. Actually, If they now have the system in place to block stolen phones, the major providers could probably place the phones from non-paid contracts on a list where they would refuse to allow the phone be used until the contract is paid in full.

        It has nothing to do with the contract with you, it has to do with the contracts they have with the manufacturers. Locking is about tying the handset to the carrier, not you to the carrier.

        Example: you could unlock the iPhone as soon as it showed up on other carriers. Even ATT would do it while you were still on contract, if you asked.

        Phones that are still on exclusive contracts tend to be non-unlockable.

      • by houghi (78078) on Wednesday March 13, 2013 @09:59AM (#43158931)

        Even before the contract ends,. you should be allowed to do whatever you want with the phone. If I sign the contract and decide I want to use my Nokia 3110. I should be allowed to do that.
        The phone that I got with the deal I should be allowed to give to my kid to play games on. I should be able to sell it.
        If I make more money on selling the phone then I did by paying you, then that pricing policy of yours is YOUR problem, not mine.

        It is not just locking. Bundled sales is the other part that is bad for people.

  • by fredrated (639554) on Wednesday March 13, 2013 @08:24AM (#43158211) Journal

    Who would have guessed?

    • I would not go has far as to say "corrupt" in this case. Ignorant of the unintended consequences of the law, perhaps. But I don't see this (yet) as a example of abject corruption. More time/data needed for the corrpution charge.

  • by CastrTroy (595695) on Wednesday March 13, 2013 @08:29AM (#43158229) Homepage
    There's a lot of laws on the books that are never enforced. There's roads where everybody drives 15 miles per hour over the speed limit and nobody ever gets a ticket because everybody knows that it's perfectly safe and that the limit is just set too slow. There was recently a law passed in Florida where all non-US citizens had to have an international driver's license to drive in the state. They forgot about all the Canadians who go there every winter. Once they realized the problem, they told all the cops to just ignore the law. This is just without even mentioning the completely ridiculous laws that are still on the books from hundreds of years ago. Just because a law is on the books, doesn't mean they have to enforce it. If there's no mandatory minimum punishments required as part of the trade agreements, judges could just let people off with a very small fine, and cops would learn that it wasn't worth their time to charge anybody for breaking the law.
    • by Aboroth (1841308) on Wednesday March 13, 2013 @08:46AM (#43158339)
      That is a perfectly pragmatic viewpoint, and I would take it as well, if the world were sane. Actually, it doesn't only take stupid or crazy people to mess up a system like you describe, it just takes well-meaning people with messed up priorities.

      There are already more laws than anybody could ever know about. We are already at the point where it is easy to be breaking multiple laws without knowing it. The police, even good police, like having this situation because it lets them arrest anyone they want at any time, if they can just figure out one of the many laws they are breaking, even if it is a stupid one. Of course they like this situation because it makes their jobs easier, and they think that their "gut feelings" are 100% correct 100% of the time.

      Do you really want to live in that kind of world? Well, whatever your answer, you already do. But do you want to make it worse?
    • Re: (Score:3, Insightful)

      by Anonymous Coward

      Your naivete shows.

      Silly traffic laws are enforced when it suits the police to enforce the laws. Haven't you watched "Law and Order" where laws are stretched to fit people ADA Jack McCoy wants to persecute? Police do this also and use the silliest of laws to facilitate their harassment.. Every regulatory entity does this. To think that they don't is quite pollyana-ish.

    • by richlv (778496)

      isn't that one of the basic rules of a police state ? everybody is always guilty. say something wrong, and you get prosecuted.

      any incorrect or unfair law should be removed or fixed as soon as possible.

    • by realsilly (186931) on Wednesday March 13, 2013 @09:17AM (#43158567)

      Here is the link to the article or law that CastrTroy noted.

      http://news.tripwheels.com/2013/02/11/international-driving-permit-required-for-florida/ [tripwheels.com]

    • by houghi (78078)

      I agree with you, except for the small fine judges could give.
      What they should do is completely ignore it. Not even let it get to the judge.

      In Belgium I have seen letters (a few years ago) from the court not to bother them with these minimal claims and if they did, they would hold them responsible for obstruction of the law, because it would take precious time away from serious cases.
      However, they wrote, they would be willing to help if it was about people who made money from it.
      This was around the year 200

    • by Comboman (895500) on Wednesday March 13, 2013 @09:43AM (#43158767)

      Having "unenforced" laws on the books that everyone breaks is dangerous because it allows police to selectively enforce those laws when they need to punish a specific individual or group (cracking down on homeless people for loitering for example, or the overly broad "computer hacking" law which was used to go after Arron Swartz).

    • Florida's international drivers license requirement is an unenforceable law. Florida can't legally make it a requirement because it violates the Genova Convention on Road Traffic [un.org]. While the law is unenforceable, it is still on the books and can cause grief for international travelers who may want to get a rental car within the state of Florida.
  • by cpt kangarooski (3773) on Wednesday March 13, 2013 @08:35AM (#43158265) Homepage

    Congress can pass the law; they have that power, and no mere treaty can take it away.

    What happens, if Congress passes a law that is in conflict with the treaty is that the most recent of them is in effect in the US.

    As for our international obligations, we have a few choices: We can withdraw from the treaty. We can seek to renegotiate the relevant part of the treaty. Or we can ignore the conflict. If we ignore it, there may be some enforcement mechanism intended to encourage us to do something, but depending on what it is, we may be able to ignore that too. After all, the US is in violation of the Berne Convention [wikipedia.org] and we've ignored that successfully for over a decade now.

    • by drinkypoo (153816)

      Congress can pass the law; they have that power, and no mere treaty can take it away.

      The problem is, if congress ratifies a treaty, it becomes the law of the land. You want them to pass a new law which conflicts with it? No, they'd either ignore or renegotiate the treaty. More likely though, they will simply observe it. They don't REALLY want to give us unlocking.

      • by Attila Dimedici (1036002) on Wednesday March 13, 2013 @09:05AM (#43158469)
        It is not clear to me from the article if the treaty specifies the list of exceptions to "circumvention prohibition" as the only exceptions allowable (which happen to be the same as the list in the DMCA) or if it merely specifies the list given in the DMCA (although my reading of the article causes me to believe it is the former). If by some chance the treaty is written in the latter manner, then it is simply a matter of Congress amending the DMCA.
        Actually, under U.S. law, the KORUS free trade agreement is not actually a treaty. It is instead a "congressional-executive agreement". That is, rather than being signed by the President and ratified by a two-thirds majority of the Senate it was passed by simple majorities of both houses of Congress and signed by the President. Which means that under U.S. law it is no more binding than any other law. Congress may pass a law changing it at any time (as far as U.S. law is concerned).
        I will restate this. The KORUS free trade agreement is not a ratified treaty, which would be negotiated by the President and ratified by a two-thirds majority of the Senate. It is no more "the law of the land" than any other law passed by Congress and, under U.S. law, may be amended by Congress at any time (subject to the same provisions as any other law). If Congress passes a law modifying the agreement (which is what this is, it is not actually a treaty), that modification supersedes the previous law (agreement). If South Korea was unaware of this, they should pay closer attention to U.S. law before signing an agreement with the U.S.
        • No treaties are binding on Congress such that later-passed legislation doesn't supersede them. The most a treaty can manage is to stand at the same level as federal law, below the level of the Constitution.

          • by jbengt (874751)

            No treaties are binding on Congress such that later-passed legislation doesn't supersede them. The most a treaty can manage is to stand at the same level as federal law, below the level of the Constitution.

            That is just wrong, treaties supercede the Constitution.
            However, Attila Dimedici noted that the KORUS free trade agreement is not really a treaty, so Congress may be able to override it easily, if they want.

            • No, treaties are inferior to the federal constitution. The constitution says so, in Article VI. Treaties are superior to state constitutions, however. (Also according to Art. VI)

          • According to Thomas Jefferson that is not the case, "...stipulations by treaty are forever irrevocable but by joint consent." That is, agreements such as the KORUS free trade agreement may be dropped by either party whenever they become inconvenient, but an actual ratified treaty may only be changed by mutual agreement between the two countries.
      • by Skapare (16644)

        Just pass a new law that undoes some or all of a previously passed law. There are lots of people in Congress trying to undo Obamacare. Do it that way.

        • by hedwards (940851)

          Yes, and those are extremists, they're not going to succeed as Obamacare is incredibly popular and going to get even more so when the last provisions go into effect.

          It's mostly the far right that decries anything that might help the working classes that's opposed to it.

    • by jbengt (874751)
      Sorry, but the only way for Congress to override a treaty is to rescind that treaty, and that wouldn't take place without the cooperation of the executive branch and the lobbyists. Treaties even trump the US constitution.
      • No, they don't. They trump state laws and state constitutions, but there is no power for the adoption of a treaty that is in conflict with the Constitution.

  • What? Yes it can. (Score:5, Interesting)

    by PlusFiveTroll (754249) on Wednesday March 13, 2013 @08:35AM (#43158271) Homepage

    >US Government May Not Be Able To Fix Cell Phone Unlocking Problem

    The U.S. (FCC/FTC?) can STOP the problem of locked phones by issuing an order saying that locked phones cannot be sold starting 5 minutes from now. The phone manufactures will starting doing back-flips unlocking new and current phones so fast the earths spin might slow down some.

    • What law gives the FCC or the FTC (or any other administrative agency) the authority to issue such a rule? (I'm not saying they do not have the authority, but your assertion that they do does not make it so).
      • by hedwards (940851)

        The FCC decides what carriers are and are not licensed to use the spectrum in the US, they could easily demand that phones not be locked to a given carrier if that carrier wishes to retain its license to use the spectrum.

        The FCC does not require any justification for taking back spectrum as the licensees are not to claim ownership over it.

        • The FCC does not require any justification for taking back spectrum as the licensees are not to claim ownership over it.

          I am pretty sure that the courts would disagree with that, at least I hope so. Because if the FCC does not requite any justification for taking back spectrum that means that they could shut down a carrier because it failed to sufficiently support the political agenda of those running the FCC.

          • by hedwards (940851)

            No, it's true, the people own the spectrum and the broadcasters just license it. In practice, the FCC tends to be staffed by appointees that don't want to press the point, but the FCC can take back the licenses at any time.

            And tha'ts a load of hogwash, not requiring a reason is not the same as having an unconstitutional reason.

            • I know that it is true that those who make use of spectrum are considered to merely license the use of it from the government. If the FCC can under current law take back the license at any time without having a reason, than they can take back the license for what you called an "unconstitutional" reason. How would you prove that they had a reason, since you said that they did not need one? Let alone prove that the reason is unconstitutional?
    • by CastrTroy (595695) on Wednesday March 13, 2013 @09:15AM (#43158547) Homepage
      I like this idea. You can't make it legal to unlock phones, but you can probably make it illegal to sell locked phones in the first place. I already stated elsewhere in these comments that it's unnecessary to lock phones in the first place since there's already a contract with fees for breaking it, and the have the technological capability to blacklist phones that are still under a contract.
  • Bullshit! (Score:5, Insightful)

    by Anonymous Coward on Wednesday March 13, 2013 @08:37AM (#43158291)

    Invade another country? "No problem. We'll just have to change the rules."

    Make it legal ( again ) to unlock phones? "We want to do it but our hands are tied."

    Of course it is bullshit!

    They are not doing it because their corporate owners don't want them to. They just want to make it seem like they are on our side. If they are, then who is this mystical other side that makes this impossible. This is bullshit.

  • by kramer2718 (598033) on Wednesday March 13, 2013 @08:38AM (#43158297) Homepage

    I find it really ironic that it is a "Free Trade Agreement" that is preventing an activity that fundamentally is "Free Trade" (you can sell an unlocked phone to someone on another network).

    I believe it comes down to the fact that governments support business at the expense of small business and DIYers. Probably because small business can't aford lobbyists.

  • by erroneus (253617) on Wednesday March 13, 2013 @08:40AM (#43158303) Homepage

    It is the carriers which are responsible for the locking. The suppliers don't give a rat's tail about whether a phone is locked or not. The carriers make the requests and the suppliers deliver on that request. Suppliers have no dog in the fight over locked vs. unlocked beyond the mild fact that a locked phone will likely stay in the region in which it was procured. But people who relocate and wish to take their phones with them are an insignificant minority.

    I get the feeling this is a blame and information deflecting piece intended to point people in directions which are not relevant.

    • Arguably, it is to the supplier's advantage if the phone is locked and can never be unlocked because then that phone is irrevocably tied to one carrier. If the end-user wants to go to another carrier, they /have/ to buy a new phone; they can't unlock their existing phone and take it with them. This means an additional sale for the supplier.

      In actuality, I'd guess that the number of end-users who actually DO bring their phones with them to a new carrier is such an insignificant amount that it's not worth the

      • by tlhIngan (30335)

        I'm not entirely sure what the advantage to the carrier is, however. The end-user is already tied to the carrier by a contract and the costs of said contract more than subsidize the cost of the phone. Is it the worry that at the end of the contract the end-user will take the (over)paid-for phone and switch to another carrier? The fact that the phone is already locked doesn't seem to be stopping this; anecdotally, I know people who purposely switch (or take a new contract with the same carrier) just to /get/

      • by jonwil (467024)

        The thing people are forgetting is the massive number of prepaid phones sold in the US, most (if not all) of which are sold below cost with no further payments required.
        The carriers (including prepaid only carriers like TracFone) can get away with this because they know that the prepaid phone you just bought is locked to them and will only work with their network, forcing you to buy service through them.

    • by tgd (2822)

      It is the carriers which are responsible for the locking. The suppliers don't give a rat's tail about whether a phone is locked or not. The carriers make the requests and the suppliers deliver on that request. Suppliers have no dog in the fight over locked vs. unlocked beyond the mild fact that a locked phone will likely stay in the region in which it was procured. But people who relocate and wish to take their phones with them are an insignificant minority.

      I get the feeling this is a blame and information deflecting piece intended to point people in directions which are not relevant.

      The carriers want the lock to preserve their exclusivity to a device, not to lock the customer in. The manufacturers want the lock because they get kickbacks in exchange for the exclusivity.

    • by houghi (78078)

      Locking is interesting for the supplier, because it means that people will have to buy a new phone. With a bit of luck they will buy one of theirs.
      They do not even have to do anything t make the phone obsolete. The phone just stops working.

      This is not even about people relocating. This is about people who get a new plan. Not sure if it happens the same all over the world, but I have seen that they just offer e new phone and by accepting that new phone, they signed up for a new 2 year plan. After 18 months,

  • Secret Treaty? (Score:5, Insightful)

    by hawguy (1600213) on Wednesday March 13, 2013 @08:52AM (#43158389)

    This is the most worrisome part of the story:

    The draft text for TPP is secret, but the U.S. proposal for the IP chapter was leaked two years ago. The leaked proposal contained KORUS's closed list of exceptions.

    How can the US sign a treaty that is secret from the citizens of the US? The government shouldn't be allowed to sign (or even consider) a trade treaty with secret terms. How else can the people know if they want to be party to the treaty?

    • Re: (Score:2, Insightful)

      by Lumpy (12016)

      Welcome to how the Republicans and Democrats operate. They are both utter scumbags.

    • Re: (Score:3, Interesting)

      It isn't secret anymore -- when they actually vote on it. But then there's no time to examine it, much less get public commentary, much less habe 6 months for people to think it over.

      These are the same people who brought you the "we have to approve the health care bill to see what's in it."

    • by jbengt (874751)
      Treaties are often negotiated in secret. It would be hard to get some parties together without that. Still, it seems daft to keep a trade negotiation secret until just before voting on it - under whose authority are they negotiating, anyway, if not the people from whom they are keeping the negotiations secret?
    • by argStyopa (232550)

      You neglect that the terms of most treaties historically HAVE been secret; the precise terms of a treaty requiring mutual defense, combat forces, etc are almost invariably secret as the uncertainty gives the treaty extra 'reach' diplomatically.

      Hell, many mutual defense treaties though the 19th century THEMSELVES have been secret - ie the public, and even other states don't even know they exist. (I'm looking at you, Bismarck.)

  • IANAL but why would a treaty with Korea have any bearing on a contract dispute between an American consumer and an American cellphone service provider? Sure the provisions of the law may appear to be in conflict, but they apply to different jurisdictions.

    • by gary_7vn (1193821)

      Signed and ratified international treaties are US law.

      • Indeed they are but their scope is international, not domestic. Korea would not have standing in a case between ATT and Freddybear in the matter of my unlocking my Samsung phone.

    • Because of the supremacy clause in the Constitution:

      "This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding."

      • All that says is that treaty law supersedes state law. It says nothing about whether a treaty can alter domestic contract law.

  • As if the US has never unilaterally ignored provisions of a treaty when it suits us? Not seeing why this should stop the POTUS, assuming he really gave a damn about the rights of anyone making less than $1mil a year.

  • by Cajun Hell (725246) on Wednesday March 13, 2013 @09:13AM (#43158529) Homepage Journal

    Even if a treaty forbids Congress from correcting DMCA, it should be easy to do something about it. FCC could ban the manufacture, sale, and trafficking in devices which transmit on licensed spectrum, if those devices require DMCA violations in order to repurpose.

    That wouldn't be as good as repealing DMCA, but it would make DMCA irrelevant to this narrow case. Can't unlock iPhones? Ok, unlocking iPhones will remain illegal. But it'll also be illegal to sell locked iPhones. If someone wants a locked iPhone, sell 'em a locked iPod Touch instead, implement the phone functionality using wifi.

    Of course: fuck the treaty. Repeal DMCA instead. And fuck all these narrow DMCA-amending proposals which are limited to "wireless devices."

  • These are agreements, not treaties (the pesky "A" in the KORUS FTA). They have not gone through the Senate as treaties. There was legislation to approve the agreement, which says [infojustice.org]

    “No provision of the [KORUS] Agreement, nor the application of any such provision to any person or circumstance, which is inconsistent with any law of the United States shall have effect.”

    These agreements themselves are, as I understand it, the equivalent of a Presidential executive order; subject to being canceled at the stroke of a pen.
    If they limit the President, it is an excuse, not compulsion.

    I am not a lawyer, and this is not legal advice.

  • Barring a contractual agreement that is made with your cell phone provider that otherwise prohibits it (which is good for 2-3 years), it is explicitly legal in Canada to unlock a cell phone.

    So why can't the USA adopt a similar solution to this problem as their neighbors to the north?

    Otherwise, I can foresee a booming business in Canadian border-towns for people living in the states that are also near the border, where they could entirely legally unlock phones for people visiting from the USA (for a p

  • Who is so fucking stupid at this point to say "oh, Obama may not actually be able to do anything about it anyway"? This is the administration which has essentially defined saying they'll do one thing, and not doing it. It's also the administration which has said they think it's cool to drone strike its own citizens.

    Why the fuck do you think they'd do anything more than placate people at this point? Asinine.

  • It's done all the time. *see: Geneva Conventions

  • by gurps_npc (621217) on Wednesday March 13, 2013 @10:22AM (#43159155) Homepage
    Treaties are LESS powerful than Law, not more so. No treaty can make us do anything at all - countries break treaties all the time (see North Korea).

    It is perfectly legal for the President to signa treaty that says "We will send all of our mushrooms to Canada."

    Then Congress can pass a law that says "We will not send ANY mushrooms to Canada."

    In such a case than it is illegal to send mushrooms to Canada, no matter what the treaty says. Canada can sue us in international court, and that court may assign sanctions to us, but they can not force us to send them all our mushrooms.

  • Change the treaty terms. Tell South Korea to agree to the changes or the whole deal is off. Oh, and about those troops we have in your land ...

  • There's no reason the TPP treaty can't be amended to require signatories have no anti-circumvention laws. The president has the power to get on this right now. He could do it today. It would be a totally legitimate political decision, too. "The people are saying this sucks. Let's try to not suck."

    If such a change makes the agreement unacceptable to the other parties, then I guess "free trade" isn't very important, so I don't want to hear any more excuses about how these treaties are a vital priority.

    If

  • by endus (698588)

    Does anyone actually think the administration had any intent of following through on what it said? This was a PR stunt to try and look like good guys. They knew very well that there were hiccups because of the treaty but, more importantly, that the change would never get past congress in the first place.

    Why are people still so naive about how the government in this country works? Maybe I'm overly cynical, but I have a preeeeeeeeetty solid track record of predicting how these things will work out. The ma

    • You're right but they still got what they wanted.

      A) People praised them for "defending our rights"/"doing the right thing"

      B) Many people "are disappointed but understand" or choose to blame an external factor so it was all image benefit and no loss.

      I keep repeating. Do NOT listen to what a politician has to say. He will ALWAYS say whatever favors him politically. Instead, closely monitor his actions and you'll see the real deal.

  • "...U.S. proposal in the Trans-Pacific Partnership Agreement (TPP) and existing obligations in the Korea-U.S. Free Trade Agreement (KORUS) and other free trade agreements to which the United States is a party."

    1) the TPP is merely PROPOSED. It's complete bullshit to say we can't just CHANGE OUR PROPOSAL. Jesus.

    2) US Law > treaties (at least within the US). Congress has to basically pass a law authorizing any treaty. That law can be rewritten, struck, etc just like ANY OTHER US LAW, as far as its appl

  • I am altering the deal. Pray I don't alter it any further.

"If a computer can't directly address all the RAM you can use, it's just a toy." -- anonymous comp.sys.amiga posting, non-sequitir

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