Note: I plan to return to the “beauty in programming language” topic soon, but the story this week was just too absurd and pressing to not comment on.
So, the change in the law concerning the legality of unlocking one’s cell phone has been all over the news this week. Basically, the law makes the unauthorized unlocking of one’s phone a crime punishable by a fine of up to $500,000 and 5 years in prison. Let’s take a step back and consider how fundamentally broken a system that allows a law like this actually is. Conceivably, one could be fined an outrageous sum of money and actually spend time in prison for unlocking his own cellphone. While I expect (at least I really hope) that we won’t see this law broadly applied, especially to the extent that anyone receives this outrageous maximum penalty, the fact that such a law even exists and that such a penalty is even possible, indicates how regressive we’ve become concerning issues of ownership and property as it relates to software, hardware and hacking.
Essentially, we’ve arrived at a place, legally, where, from a property rights standpoint, you can no longer be rightly said to own most of the hardware and software you buy. Put aside for the moment all of the tricky questions related to owning software (i.e. what it means to own a series of perfectly and nearly freely reproducible bits). We’re not talking about anti-piracy laws here, though most of the government’s current suggestions on that front look Draconian at best; we’re talking about the freedom to unlock your cellphone, install a custom firmware and remove encryption protocols that prevent you from uploading, say, a program that you wrote to your device. What we’re talking about here is placing a potentially extremely punitive penalty on tinkering. This law is technically under the regulatory authority of the librarian of Congress, granted by the counterproductive, ill-informed, naive and, frankly, dangerous Digital Millennium Copyright Act (DMCA) signed into law under President Clinton in 1998. Since its inception, the DMCA has been a largely destructive force, hampering progress and leading companies to put ever more restrictive conditions on how you can use their products that you purchase. It’s also the law that gives digital rights management (DRM — a.k.a. digital restrictions management) enforcement its teeth, since it makes circumventing encryption, even for purposes perfectly benign purposes that don’t involve accessing or distributing sensitive information, illegal.
So the question that all of this really raises in my mind is “How should we deal with these types of unacceptable laws?” I don’t have an answer to this question, and the question itself is rather loaded and difficult to characterize. For example, what constitutes unacceptable, and who gets to apply that label to a law? However, assuming that a law, like the one this post is about, passes a reasonable test to be considered unacceptable, how should we, the informed but legislatively powerless citizenry respond? How should one inform his representatives, who themselves may truly be ignorant of the underlying issues, that such a law is simply unacceptable? How does one organize a response that is significant enough that the message to the legislature (like the anti-SOPA protests) is crystal clear — “this will not stand.” I don’t know what the most effective strategy is to ensure that our copyright related laws regain some modicum of rationality, but I do know that we need to figure out how to send a clear, unambiguous and decisive message to those who draft and execute these laws. At least the message itself is simple; it’s “NO!”