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These hoes got to go
The Most Ridiculous Law of 2013 (So Far): It Is Now a Crime to Unlock Your Smartphone
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.
ReutersThis is now the law of the land:
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 jurynullification 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).]
NEW ABSURD CRIME
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 cir vention 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 -- not as a result of a mistake but of 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 like 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 be choosing 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 crazy 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:
And if you thought this was bad, provisions of the DMCA relating to anti-cir vention 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.
"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-cir vention 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."
I for one am pro-choice with regard to my smartphone, ask your elected representative if they are 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.
http://www.theatlantic.com/business/...phone/272552/#
These hoes got to go
What the
I believe it was already a "crime" by going against the user agreement. Of course, it's all a bunch of stupid horse . If you buy the hardware, you should be able to do whatever the you want with it. Is there any other similar example in the world? If I mod my car, will that put me in jail? How about a gun?
Absolutely, when they start making cars that only take specific brands of gasoline and you convert your car to run on a different brand.
More like, when your car can naturally take all kinds of gasoline but the company adds a lock code to restrict it to one brand.
Wait a minute wait a minute, if I root my phone, I can go to jail? $500,000 fine?? No way.
Not rooting, unlocking.
Unlocking is taking an AT&T phone that is locked to the carrier, unlocking it and using it on T-mobile.
I see, thanks for the clarification. But what's the point of unlocking to switch carriers if you have a contract with the carrier? Why not do better research with the carriers to find the best plan for you in the first place?
Let's say I have a really nice T-mobile phone. Now lets say I that I run out my contract with tmobile and don't want a new phone. I can take my phone to ATT. This deprives ATT of a phone sale. Also, If you go to another country and want to just buy a prepaid sim and stick it in, you can't unless unlocked. Now you would have to pay roaming with your provider.
Man that is ridiculous. Ok so how does one get caught? ATT snitches you out to the authorities because you don't want to buy their phones? I smell blackmail as a new marketing technique.
I have not had to unlock a phone, so I am unsure
this is Obama's fault.
The intrusion of the mega-corporations into fixing the rules to prevent compe ion and consumer choice should have, as the Atlantic notes, Republicans in an uproar – but Capitol Hill Republicans (as is the case with many Dems on the Hill) are not really pro-free market; they are pro monopolizing corporations.
Democracy cannot flourish without economic democracy.
If a group of corporations that have crossed a threshold into being like their Wall Street counterparts, too big to be denied assistance in fixing markets and stifling compe ion, then democracy as a political force is diminished; it runs the danger of becoming an extension of a marketplace that protects the virtual economic monopolies.
It will probably get worse, as the Atlantic points out: "And if you thought this was bad, provisions of the DMCA relating to anti-cir vention are part of the Trans-Pacific Partnership (TPP) Treaty -- and the United States is the party asking for it as part of the negotiations."
http://www.truth-out.org/buzzflash/commentary/item/17772-corporate-bondage-of-smart-phone-users-legalized
the mega-multinaitonal corporations are now supra-national and running the planet. They will continue to extract wealth from wherever it can be extracted.
I dunno about your analogy, man...
You don't actually buy a phone from most carriers, you buy access to a service and, in return, are allowed access to a selection of discounted devices which are subsidized by the carrier -- the classic loss-leader. So it would be like leasing a car, but welching on paying your bill, and instead paying another dealership that offers a more favorable rate, which is a little more dodgy. Don't get me wrong -- the penalties are absurd -- but the principle that jailbreaking is a victimless crime (especially given compe ion among telecoms) is not entirely accurate.
"what you in for?"
"double-homcide. you?"
"unlocking my iphone"
I don't think this analogy works because no one is welching on their bill. You are still responsible for your contract whether you unlock your phone or not. I can put my phone in the drawer for 2 years and I still have to pay the $70/month bill I signed up for.
The biggest complaints isn't coming from the initial carrier, it's actually coming from the carrier you leave for. They don't want you to bring a phone from the other company - they want you to buy THEIR phone, either through a 'subsidized' rate or outright for full price.
The DMCA was introduced and largely supported by conservative s . Billington, who heads the Library of congress was a Reagan appointee.
Those people have good moral values donīt cha know.
I'm inclined to disagree somewhat. Carriers make their money being carriers and lose money selling phones below cost to get you to sign and lock you in -- hence loss-leader. A carrier-subsidized iphone costs $199. An unlocked one goes for $649. There are economies of scale involved, but the bottom line is that a carrier invests heavily in its devices for the sole purpose of selling its services.
A jailbroken smartphone allows a person to use apps that enable VoIP (bypassing profitable voice service in wifi hot-spots, for example), disable or distort tracking and user metrics (like how much data you are using or where you are), etc. That said, you're right to point out that it isn't just carriers who are threatened by jail-breaking smart-phones -- when developers start working outside the closed retail space of a company like Apple, manufacturers (who take a 20%+ cut for hosting and maintaining the developer community ecosystem in exchange for protection and promotion) and developers (especially those who play according to closed-system retailers like Microsoft and Apple) are exposed to losing money by being pirated or having their intellectual property otherwise mis-used.
But all this is kinda moot in light of how egregious and venal a law this promises to be. It's a shame the telecoms were so utterly deregulated in the early 2000's and intellectual property law is so stacked in favor of the multinational corps.
Except that when you purchase those subsidized phones, you still have the contract for however many years of service. If you decide to break that contract, cool.
The hardware isn't "free" by any means. It may be subsidized, but it's not free. If they say you can buy the hardware for $200, and you do, it should be up to you what you do with the hardware. And if you decide to break the 2 year contract, there are penalties and whatnot for doing so.
Also, when you lease a car, you obviously don't own the car. You can't sell it to someone else, after all. But if I went to AT&T today, and bought a smartphone, AT&T won't come after me if I decide to sell that to my friend for whatever price I feel is fair. You know, because I OWN the phone.
This doesn't change whether or not you've unlocked your phone or left the carrier or not - once you've signed the 2 year (3 year in Canada) agreement, they've made their money back. If I leave my carrier mid-contract, I'm not only responsible for all the hefty cancellation fees, I'm also responsible for paying back the 'subsidy' they offered you on your phone during your contract. There's no money lost on the carrier side.
And you'd be surprised on how the 'subsidized' system has been much more beneficial to the carrier than to the customer. Charging $60-70/month on a 2-3 year contract and providing a subsidized phone is more attractive than having you pay the phone in full and charging you $30/month for the same service (as is the case in many European nations). It's not like these carrier are offering you better plans if you pay full price for a phone at their stores - not only to you get a locked phone you spent $600 for, but month-to-month plans are typically not any better. In essence, they're encouraging you sign the contract and get a 'cheaper' phone with them.
Jailbreaking is still perfectly legal. This is simply about unlocking a device to be used by any carrier (can be done through an unlock code; doesn't require jailbreaking).
I'm in agreement on this one. And the total lack of understanding of new technologies by lawmakers is hilarious.
He's black, you have to grade him on a curve.
It's risk mitigation for corporate America. There's a risk in giving away a phone in exchange for a contract. The risk is you have to go after the customer for the fees of breaking the contract. I think that's where their authority should end. We cannot be put in jail for failure to pay a debt (other than child support and taxes) but we can be for thwarting a loss-leader?
I've always said that if you don't support rights you don't use no one will support rights you do.
But it depends on the ramifications of allowing it to go unaddressed. If I am given a printer on the premise that I puchase proprietary ink cartridges only, and I modify that printer so I can just use cheaper cartridges, I am breaking an agreement and also stealing from a company their built in revenue from the printer/ink service. I think that, if you acquire a device on false premises, you're stealing. If you are caught, you should be charged with theft. I don't think that should be a 1M dollar fine. Pedos don't get that much.
Aha... this is at the heart of my misunderstanding. Thanks for zeroing in on it.
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