KC(A) Bill and the iPhone: Is Commercial Unlocking Illegal?

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This past week has seen a flurry of activity in the African telecommunications arena, from Egypt banning the iPhone’s GPS feature set to Accuris Networks foraying into Kenya via QuickTel, a local company,  with the hope of expanding the reach of mobile subscribers by offering inter-technology (2G/ 3G, CDMA/TDMA) roaming.

Two issues occurred at the end of the week that generated a fair share of buzz: introduction of the iPhone and passage of the contentious Kenya Communications (Amendment) Bill 2008 in Kenya.

What is the relation between the two?

The iPhone is currently only offered by Orange Kenya and, while not entirely clear, it’s safe to assume that the phone is locked to this carrier. This sole-carrier model is one that Apple has used in it’s global deployments except in countries where this exclusivity has been successfully challenged.

It’s quite astonishing to me that there’s no mention of the iPhone launch on their company website www.orange.co.ke or even on www.telkom.co.ke. If the iPhone is going to be their flagship product they clearly need a better marketing strategy.

This Daily Nation article says that they rolled out the device on a GSM network that uses EDGE as the packet service. If this is accurate, then that means they’re launching the 3G phone on a 2.5G network (2G GSM+EDGE); some inconsistency here, unless they’re planning to roll out UMTS a.k.a 3G GSM (WCDMA+HSPA) at a later date. Again, about that lack of any sort of technical marketing information.

Many more people are subscribed to either Safaricom or Zain, and so naturally there will be a number of Deep Pockets (retails for between KShs. 33,900 – 59,200; device only, plan not included) who will switch. For the phone to be used on either network you need to unlock it. This has already been done in other global markets.

Which leads us to the confluence of the iPhone and the KCA Bill:

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It can be affirmatively argued that unlocking a phone “changes” and “interferes” with the “mobile telephone equipment identity”.

There are a number of ways of unlocking a phone but each result in the alteration of the identity of the phone – from being uniquely belonging to a particular carrier, to no parental affiliation. The embedded code in the phone is reprogrammed to accept any functional SIM inserted as a valid SIM, and is thus usable as long as the mobile operator has a local presence or a roaming service agreement.

So unless you are a phone manufacturer (Nokia, Motorola – unlikely) or an authorized agent of said manufacturer, unlocking your phone is an offense whose penalty, if convicted, is a chunk of change and/or a stay behind bars.

Wait. That’s not the whole story, and now this is where it gets interesting:

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The operating words are personal and bonafide. It appears that its premise hinges on the contextual and legal interpretation of “in good faith“.

So for personal endeavors, it’s fine. So what’s the fuss?

Well, most people fret about unlocking their phones themselves because of the fear that it will become bricked. That concern is not entirely unfounded. So who to turn to? A professional (or semi-pro) outfit. Businesses are created around consumer demand for products and services. Which raises the question: will it be illegal to provide unlocking services of mobile phones for commercial gain? Quite possibly, because it falls out of the domain of “personal technological pursuit”. It’s business, nothing personal.

Okay. So what if you unlock your phone, personally, and then you sell it? No harm done.

Say you do that for a hundred phones, without formal incorporation? Grey matter. Tax evasion.

What if you have an embedded design class that focuses on reverse engineering for “technological review”, what happens to the unlocked phones? Ok, maybe that’s a stretch. But I hope you follow.

No doubt, underground, River Road-esque unlocking services will thrive, but for those looking to go legit, some food for thought.

All this of course,  if indeed the President assents the Bill.