When I saw this story linked by a Facebook friend — that in a few days it will be a federal crime to unlock your smartphone — I honestly thought it was a joke.


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?

Hey wait a second. Anyone who says that “no one is really going to get those types of penalties” ought stop and think for a moment. Consider Aaron Swartz (who committed suicide over the possibility of getting 50 years in prison for illegally downloading academic articles).

Or Nancy Black, facing 20 years for whistling at a whale.

Or federal SWAT Team raids on a beloved guitar company for allegedly making guitars from non-union wood:

“In two cases we had a SWAT team, treating us like drug guys, come in and shut us down with no notice,” lamented Gibson chairman and CEO Henry Juszkiewicz. “That’s just wrong. We’re a business. We’re making guitars.” Juszkiewicz says the raid, seizures, and resulting plant closure cost Gibson more than $1 million.

And how about long prison terms over lobsters packaged in plastic instead of cardboard? Or sloppy labeling of orchids?

This abusive treatment of a legitimate business like Gibson is not an isolated incident. Small businesses have been similarly raided, and their officers imprisoned, for such minor offenses as importing lobster tails in plastic rather than cardboard (three men were given eight-year prison sentences) and sloppy labeling on imported orchids (the accused was given a 17-month sentence).

So, the question is not whether anyone will face such sentences (they do), but whether laws allowing them should have been enacted in the first place, for their very existence gives any aggressive prosecutor powerful tools to single out and destroy virtually any citizen at will. (If we consider that the average American commits three felonies per day, this is an easy task, and one which becomes easier every day.)

When I saw that this was no joke, I was all ready to slam Congress over this latest outrageous legislation. How was such a tyrannical law ever passed in a democracy?

The answer is that it was not passed. Instead, a librarian signed a piece of paper.

No, seriously.

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.

Wow. I always thought of librarians as, you know, meek and nerdy bookworm types.

No more. Some librarians have the sort of power once reserved for monarchs.

In October 2012, the Librarian of Congress, who determines exemptions to a strict anti-hacking law called the Digital Millennium Copyright Act (DMCA), decided that unlocking mobile phones would no longer be allowed. But the librarian provided a 90-day window during which people could still buy a phone and unlock it. That window closes on January 26.

I don’t know exactly who the clowns are behind this nonsense (the librarian himself is one James H. Billington, who has never been elected to anything), but they are making a mockery of our constitutional process, to say nothing of democracy itself.

The piece in The Atlantic argues that conservatives should be leading the fight against unelected bureaucrats being given tyrannical powers:

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.

Unfortunately, I don’t expect “conservatives” (whatever that means) to do much, if anything. Dramatic power grabs like the DMCA, the Patriot Act, and the criminalization of wood are inevitably bipartisan in nature. And because the bastards don’t have to spell out what will actually become a crime, their very dereliction of duty enables them to evade personal responsibility for what ends up happening when the bureaucrats to whom they delegate power decide to use it.

When our founders went to war to stop taxation without representation, their objection was not having representatives in Parliament, but at least Parliament passed the laws through the legislative process, flawed though it was. The tyrannical “laws” in question here were never passed, but simply imposed by people who were never elected.

This situation is far worse than what the founders faced and it is only getting worse. Just wait till Obamacare is fully implemented. Things like lying to a doctor about one’s smoking habits can already be construed as insurance fraud:

If you lie to your physician, and that becomes part of your insurance record, you are subject to fraud.

And once the Feds succeed in making insurance mandatory, your health care providers will become agents of the federal government. As to how long a prison term a smoker might get for lying to his doctor, I guess it will be up to the faceless, unelected bureaucrats to decide.

Consent of the governed, anyone?

It’s bad enough that the people have so little say over their elected representatives. But when the elected representatives themselves are no longer in charge, I’d say the idea of consent of the governed has become a cruel joke.