Effective last week, the Librarian of Congress officially criminalized the unlocking of new cell phones, with fines for one-time offenders reaching as high as $500,000 in addition to up to five years in prison.
Unlocking cell phones so that they can be used on different carriers’ networks was a fairly common practice that presented a variety of potential benefits to consumers. As of January 31, a White House petition to rescind the decision has more than 46,000 signatures.
So how did an unelected bureaucrat (the nation’s top librarian) appointed to his position more than 25 years ago, end up with the power to criminalize what has until recently been a common activity?
Under the 1998 Digital Millennium Copyright Act (DMCA), which outlaws technologies that bypass copyright protections, the Librarian of Congress is directed to issue exemptions to law. The exemptions are only good for three years, and interestingly, the unlocking of new cell phones was previously exempted in both 2006 and 2010.
Although it’s one of the more absurd examples in recent memory, the Library of Congress isn’t the only federal agency issuing pseudo-legislation that affects millions of Americans without any input from their elected representatives in Congress.
In 2011, a controversial mandate by the Department of Health and Human Services required that private health insurance plans cover contraception, even for nonprofit groups that opposed contraception for religious reasons (you may recall that GOP support for a religious exception to the mandate was ridiculously labeled a “war on women”). Last year, the Environmental Protection Agency (EPA) issued new rules that effectively banned new coal-burning power plants.
Aside from being patently undemocratic, permitting librarians and other bureaucrats to exercise such wide-sweeping legislative authority also reduces transparency in government. This was supposed to be the “most transparent administration in history” after all.
Wireless carriers have been fighting for years to remove the DMCA exception for phone unlocking. How much influence might cellular companies like AT&T and Verizon have had in the chief librarian’s phone unlocking decision? It’s difficult to tell, but both companies are ranked as “heavy hitters” for lobbying and political contributions by the government transparency group opensecrets.org – AT&T was the tenth ranked lobbyist in the country in 2012.
Constituents also know how to lobby their elected officials and follow developments in Congress, but they are generally clueless about how to participate in complex agency rule-making processes. The Librarian of Congress formally announced his prohibition on phone unlocking back in October 2012, but most Americans didn’t even notice the rule-making until three-months after the decision was already made. Federal agencies are making enormously influential decisions on behalf of Americans and most people don’t even know it!
Government by librarian – it doesn’t get any more absurd than that.