“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:
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.”
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