The Most Ridiculous Law of 2013

[wizwor]

From the Atlantic...

The Most Ridiculous Law of 2013 (So Far): It Is Now a Crime to Unlock Your Smartphone

Originally Posted by the Atlantic

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.*

The gist of the article has been done to death here, but I wanted to quote the footnotes for discussion...

Originally Posted by the Atlantic

* 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.

[Apache]

I do not think that the Library of Congress can pass laws. That is reserved for the Senate and House of Representatives.
Apache

[taustin]

Originally Posted by Apache

I do not think that the Library of Congress can pass laws. That is reserved for the Senate and House of Representatives.
Apache

Congress passed a law that gave the Library of Congress the job of defining exceptions to it.

[wizwor]

Originally Posted by Apache

I do not think that the Library of Congress can pass laws. That is reserved for the Senate and House of Representatives.
Apache

Maybe this hasn't been done to death The LoC has been charged with defining exceptions to a very vague law.

[Sil_liS]

2013 is off to a good start.

[Lemurion]

Half a Million for unlocking a phone? Overreact much?

[DiapDealer]

I think there's an important distinction between "rooting" (to install a legally obtained app that otherwise wouldn't work on your device) and "unlocking" (for the purpose of carrier hopping). Most people with far more expertise in legalese than me have suggested that the former wouldn't likely fall under the aegis of the new decree, but rather the latter is what's being targeted.

But who knows for sure? This guy sure seems to. Whether or not he actually does know is debatable, but it at least sounds sensible (as if that really applies).

[kennyc]

I have to agree it is a very ridiculous law. We should be opening this sort of thing up, not making it illegal. I wonder who was behind this?

[Dopedangel]

I thought laws were there to protect people but in the US corporations are people so I guess the laws are for them. Over here it has been illegal for a carrier to lock phones for many years. Its your phone you paid for it carriers should not have a say in what you do with it.

[cromag]

Over here carriers often bundle the cost of the (locked) phone into the cost of the service contract.

Not saying that's right or wrong -- just the way it is.

[crich70]

Reminds me of another news story about the Senate and stupid decisions. When time was running out to keep the Gov. going and there was the 11th hr agreement someone slipped something into a bill that would give some $500 million to a particular drug co. (I forget which) Anyway this particular Drug company had been in the news this previous year for some illegal doings for which they were fined $700 million. So in effect the add on to the bill would pay back all but $200 million of the fines the company had paid out. It's just plain stupid. You don't give money to someone who has just been found guilty of breaking the law.

[Dopedangel]

Originally Posted by cromag

Over here carriers often bundle the cost of the (locked) phone into the cost of the service contract.

Not saying that's right or wrong -- just the way it is.

Same here but the phones are still carrier unlocked.

[Lynx-lynx]

And the law for breaking wind in public???

Oh, that's still being considered is it?

(Well, surely someone's thought that'd be a real money earner! )

[LazyScot]

If you own the phone, I assume it isn't locked. (As mentioned above, though your deal may state that the phone company owns the phone, which is fair enough as you probably didn't pay for it outright and if you don't like them having the right to lock it you should have got another deal.) But if you put your phone (purchased outright by yourself) on a contract that (deliberately or accidentally) locks the phone, then surely you have the right to unlock it (and fine the phone company $500,000 for mis-using your "computer")....

[kennyc]

Originally Posted by Lynx-lynx

And the law for breaking wind in public???

Oh, that's still being considered is it?

(Well, surely someone's thought that'd be a real money earner! )

If my Galaxy SIII starts breaking wind I'm going to trade it in for a Note II!