Last Week in Tech Law and Policy, Vol. 22: Open Source Firmware and the Future of Router Modification

(by Jeffrey Westling, Colorado Law 2L)

Last Friday, the Federal Communications Commission closed the comment period for ET Docket No. 15-170, a controversial proceeding that may limit Wi-Fi users’ ability to install open source firmware on wireless routers. The FCC has remained adamant that their goal in this process is not to restrict users from modifying their routers, but rather to ensure that routers do not operate outside certain regulatory parameters. However, Wi-Fi users fear that the new rules may actually incentivize manufacturers to block all open source firmware from being installed on their devices rather than just limiting signal boosting capabilities or operating outside of the correct channels.

Unlicensed Spectrum and Wi-Fi routers

Wi-Fi routers operate in unlicensed spectrum, which means that users do not need to apply for a license before operating. As a result, users of Wi-Fi have limited, if any, protection against interference from other operators. However, there are restraints such as operating rules that limit the way users can operate an unlicensed device—i.e., rules limiting power output—which are designed to prevent the tragedy of the commons and ensure everyone has access to the unlicensed bands.

In March of last year, the Commission revised part 15 of the rules to allow U-NII devices to operate in the 5 GHz band. However, this move has not happened without issues. One problem, for example, is that 5 GHz Wi-Fi has interfered with weather radar, which takes priority over the unlicensed use of Wi-Fi.

To limit potential issues, the Office of Engineering and Technology explained that manufacturers should “[d]escribe in detail how [routers are] protected from ‘flashing’ and the installation of third party firmware such as DD-WRT” when obtaining approval for a new device. The recent proposed rules require that grantees implement measures to prevent modifications to devices that would allow them to operate outside their certified radiofrequency range.

Open Source Firmware

While open source firmware like DD-WRT can permit users to impermissibly increase signal output, the firmware can also perform numerous legitimate functions. Users of this type of firmware have argued that the FCC is deliberately trying to restrict the rights of Wi-Fi users by preventing them from having access to legitimate features under the guise of restricting radiofrequency manipulation. While the rules do not ban open-source firmware modification in its entirety, some worry that manufacturers may find it easier to prevent modification in its entirety than to try and limit control of radiofrequency modification. Harold Feld (Senior Vice President of Public Knowledge), speaking to TechDirt, explained the issue:

But at the same time, we don’t want the FCC to accidentally write rules that are over-broad or subject to misinterpretation by companies. The real concern here is not some government conspiracy to wipe out open source or mandate encryption. The real worry is that major chip manufacturers will respond by saying ‘the easiest thing for us to do is lock down all the middleware rather than worry about where to draw the line.’ That would potentially kill a lot of innovation and valuable uses.

Next Steps

The concern at the core of the debate is what to do about situations in which end users modify devices outside of specified operating range. Adopting the proposed rules may result in less interference caused by Wi-Fi routers in the 5 GHz range but also may restrict the end users ability to modify their devices. The WiFi Alliance (see page 10) suggests that rather than shifting costs and blame to the manufacturers, the Commission should permit third party modification but require notice be provided to end users that any modification may affect device compliance with FCC rules.

Regardless of what the FCC decides to do, we will be keeping a close eye on the reactions of various stakeholders over the coming months.