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.
This is now the law of the land:
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.
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