www.theatlantic.com
ADVISORY
BY DECREE OF THE LIBRARIAN OF CONGRESS
IT SHALL HENCEFORCE BE ORDERED THAT AMERICANS SHALL NOT UNLOCK THEIR OWN SMARTPHONES.
PENALTY:
In some situations, first time offenders may be fined up to $500,000,
imprisoned for five years, or both. For repeat offenders, the maximum
penalty increases to a fine of $1,000,000, imprisonment for up to ten
years, or both.*
That's right, starting this weekend it is
illegal to unlock new phones to make them available on other carriers.
I have deep sympathy for any individual who happens to get jail time
for this offense. I am sure that other offenders would not take kindly
to smartphone un-lockers.
But seriously: It's embarrassing and unacceptable that we are at the
mercy of prosecutorial and judicial discretion** to avoid the
implementation of draconian laws that could implicate average Americans
in a crime subject to up to a $500,000 fine and up to five years in
prison.
If people see this and respond,
well no one is really going to get those types of penalties,
my response is: Why is that acceptable? While people's worst fears may
be a bit unfounded, why do we accept a system where we allow such
discretionary authority? If you or your child were arrested for this,
would it comfort you to know that the prosecutor and judge could
technically throw the book at you? Would you relax assuming that they
probably wouldn't make an example out of you or your kid? When as a
society did we learn to accept the federal government having such
Orwellian power? And is this the same country that used jury
nullification
against laws that it found to be unjust as an additional check upon
excessive government power? [The only silver lining is that
realistically it's more likely that violators would be subject to civil
liability under Section 1203 of the DMCA, instead of the fine and jail
penalties, but this is still unacceptable (but anyone who accepts
payments to help others unlock their phones would clearly be subject to
the fine of up to $500,000 and up to five years in jail).]
WHO REALLY OWNS YOUR PHONE?
When did we decide that we wanted a law that could make unlocking your smartphone a criminal offense?
The
answer is that we never really decided. Instead, Congress passed the
Digital Millennium Copyright Act (DMCA) in 1998 to outlaw technologies
that bypass copyright protections. This sounds like a great idea, but
in practice it has terrible, and widely acknowledged, negative
consequences that affect consumers and new innovation. The DMCA leaves
it up to the Librarian of Congress (LOC) to issue exemptions from the
law, exceptions that were recognized to be necessary given the broad
language of the statute that swept a number of ordinary acts and
technologies as potential DMCA circumvention violations.
Every three years groups like the American Foundation for the Blind have to
lobby
Congress to protect an exception for the blind allowing for books to be
read aloud. Can you imagine a more ridiculous regulation than one that
requires a lobby group for the blind to come to Capitol Hill every
three years to explain that the blind still can't read books on their
own and therefore need this exception?
Until recently it was
illegal
to jailbreak your own iPhone, and after Saturday it will be illegal to
unlock a new smartphone, thereby allowing it to switch carriers. This
is a result of the exception to the DMCA lapsing. It was not a mistake,
but rather an intentional choice by the Librarian of Congress, that
this was no longer fair use and acceptable. The Electronic Frontier
Foundation among other groups has detailed the many failings of the
DMCA Triennial Rulemaking process, which in this case led to this
exception lapsing.
Conservatives should be leading the discussion on fixing this
problem. Conservatives are understandably skeptical of agencies and
unelected bureaucrats wielding a large amount of power to regulate, and
are
proponents
of solutions like the REINS Act (which has over 121 co-sponsors).
However, if Congress truly wants to rein in the power of unelected
bureaucrats, then they must first write laws in a narrow manner and
avoid the need for intervention by the Librarian of Congress to avoid
draconian consequences, such as making iPhone jail-breakers and
smartphone un-lockers criminals, or taking away readable books for the
blind.
If conservatives are concerned of unelected bureaucrats deciding
upon regulations which could have financial consequences for
businesses, then they should be more worried about unelected
bureaucrats deciding upon what is or isn't a felony punishable by large
fines and jail time for our citizens. And really, why should unelected
bureaucrats decide what technological choices you can make with your
smartphone? These laws serve to protect the interests of a few
companies and create and maintain barriers to entry.
But there is another matter of critical importance: Laws that can
place people in jail should be passed by Congress, not by the decree of
the Librarian of Congress. We have no way to hold the Librarian of
Congress accountable for wildly unfair laws. There are still plenty of
crazy laws passed by elected officials, but at least we can then vote
them out of office.
There are numerous other problems with the DMCA. As I explained in an essay for
Cato Unbound:
"The DMCA bars developing, selling, providing, or even
linking to technologies that play legal DVDs purchased in a different
region, or to convert a DVD you own to a playable file on your
computer. Because no licensed DVD playing software is currently
available for the Linux operating system, if a Linux user wishes to
play a DVD that they have legally bought, they cannot legally play it
on their own computer.
In order to regulate this anti-circumvention market, the DCMA
authorizes injunctions that seem to fly in the face of First Amendment
jurisprudence on prior restraint. The DMCA also makes companies liable
for copyright infringement if it doesn't remove content upon
notification that someone believes the content infringes their
copyright - this creates a very strong business interest in immediately
taking down anything that anyone claims is infringing to not be liable.
Christina Mulligan's essay for Copyright Unbalanced details how in
mid-July 2012 a Mitt Romney campaign ad hosted on Youtube was forcibly
removed from the site, and in 2008 Youtube blocked several John McCain
ads for more than 10 days. As Mulligan details, the ads were legitimate
under "fair use." Allowing individual people to veto political speech
that they do not like stifles free expression and political dialogue
and even if a rare occurrence under the DMCA should not be taken
likely. There are also other examples of abuse, Mulligan details that
one group had all Justin Bieber songs removed from Youtube as a prank."
And if you thought this was bad, provisions of the DMCA relating to
anti-circumvention are part of the Trans-Pacific Partnership (TPP)
Treaty -- and the United States is the party asking for it as part of
the negotiations. Placing it in the treaty will enact our dysfunctional
system on an international level in countries that don't want it, and
it will "re-codify" the DMCA in an international treaty making it
significantly more difficult to revise as necessary. Copyright laws are
domestic laws and they need to be flexible enough to adjust accordingly
to not inhibit new innovation.
I for one am pro-choice with regard to my smartphone. Our representatives ought to be, as well.
__________________________
* Specifically this refers to Section 1204 of Public Law 105-304,
which provides that "any person who violates section 1201 or 1201
willfully and for purposes of commercial advantage or private financial
gain. . .[shall be subject to the listed penalties]." However, given
copyright laws broad interpretation by the courts, it could be argued
that merely unlocking your own smartphone takes a device of one value
and converts it into a device of double that value (the resale market
for unlocked phones is significantly higher) and therefore unlocking is
inherently providing a commercial advantage or a private financial gain
- even if the gain hasn't been realized. In other words, unlocking
doubles or triples the resale value of your own device and replaces the
need to procure the unlocked device from the carrier at steep costs,
which may be by definition a private financial gain. Alternatively, one
can argue that a customer buying a cheaper version of a product, the
locked version vs. the unlocked version, and then unlocking it
themselves in violation of the DMCA, is denying the provider of revenue
which also qualifies. There are several cases that have established
similar precedents where stealing coaxial cable for personal use has
been held to be for "purposes of commercial advantage or private
financial gain." (See
Cablevision Sys. New York City Corp. v. Lokshin, 980 F. Supp. 107, 109 (E.D.N.Y. 1997)); (
Cablevision Sys. Dev. Co. v. Cherrywood Pizza, 133 Misc. 2d 879, 881, 508 N.Y.S.2d 382, 383 (Sup. Ct. 1986)).
** The Ninth Circuit recently explained in United States v. Nosal, 676
F.3d 854 (9th Cir. 2012) that under a "broad interpretation of the
[Computer Fraud and Abuse Act (CFAA) you could be prosecuted for
personal use of work computers]." The court explained that under this
approach "While it's unlikely that you'll be prosecuted for watching
Reason.TV on your work computer, you could be [emphasis in original].
Employers wanting to rid themselves of troublesome employees. . . could
threaten to report them to the FBI unless the quit. Ubiquitous,
seldom-prosecuted crimes invite arbitrary and discriminatory
enforcement." The Court rejected this interpretation which would have
made regular activity by average citizens as a potential felony and
ruled that running afoul of a corporate computer use restriction does
not violate the CFAA. It's possible that here a court would use
judicial discretion to narrowly interpret the DMCA and reject the broad
definitions that are typically advanced by the government.
