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Author Topic: Meanwhile in USA... Unlocking Phone is a CRIME!!!  (Read 9755 times)

burnhito

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Meanwhile in USA... Unlocking Phone is a CRIME!!!
« on: January 30, 2013, 10:45:20 am »
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.

Source: http://www.theatlantic.com/business/archive/2013/01/the-
most-ridiculous-law-of-2013-so-far-it-is-now-a-crime-to-unlock-
your-smartphone/272552/
If Only Close Minds Came With Close Mouth