The Property Police State: Alberto Gonzalez Seeks More Power to Tap Our Phones


May 19, 2007


Browse in Freedom Intellectual Property

There was a time, long ago, when the concept of “property” was a bulwark against an oppressive and arbitrary state. But the supposed bulwark has turned into a means of infiltration; and the latest evidence is the proposed Intellectual Property Protection Act of 2007. Alberto Gonzalez, the Attorney General who used the election laws to try to keep Democrats from voting, now wants more authority to wiretap our phones in the name of protecting intellectual property.  He seems oblivious to the alarms that raises.

Everything is in some sense an idea.  We name things, hold images of them in our minds. All we know of anything, ultimately, is our idea of it.  So the concept of intellectual property has a boundary problem from the start.  Congress and the courts have fed this tendency through constant expansion of the copyright and patent laws.  Where property rights go the powers of the state follow, as the Administration’s enforcement proposal demonstrates.

The IPPA would permit more wiretaps for piracy investigations, for example.  The Feds think your teen-ager might have downloaded some music without authorization?  They might be able to tap your phone.  The Feds also could seize your computer more readily under the bill.  Plus, you could be prosecuted merely for intending to infringe a copyright.  Actual infringement no longer would be necessary.  Does that mean they could nab you for walking towards a Kinko’s with copyrighted material? I wonder what Gonzalez, and  Karl Rove, could do with authority such as that.

There is more, such as the provision to increase the penalties for violations of the Digital Millennium Copyright Act.  That’s the one that bans public discussion of glitches in built-in piracy protections.  The Administration proposal actually requires the Department of Homeland Security to notify the Recording Industry Association of America when it catches someone bringing unauthorized CDs or DVDs into the country. Homeland Security has nothing better to do than serve as private security guards for the recording industry?

But wait.  This bill is not for the recording industry.  I have that on the authority of the top Republican on the House Judiciary Committee, Congressman Lamar Smith of Texas.  “Any plan to stop IP theft will benefit the economy and the American worker,” Smith said.   Congress has extended the term of copyright every time Mickey Mouse was about to go into the public domain.  This hasn’t been for the Disney Corporation.  It’s been for the American worker.

If that’s the case then the American worker will be pleased at another legislative development, this one in the states.  Under the banner of curbing the sale of stolen goods, states are making it increasingly difficult to sell used CDs.  In Florida, for example, stores that buy used products for resale will have to apply for a permit, and get a thumb-print of CD sellers along with a copy of their driver’s license. Shops could pay for those CDs with store credits only, not cash.

Such measures are commonly called “pawn shop laws.” Idaho has passed one similar to Florida’s, and a bill is pending in Rhode Island. Local police already have visited at least one chain in Florida; and the store in question stopped selling used CDs rather than go through the hassle.   As Congressman Smith said this will be of great benefit to American workers to want to sell their old CDs or buy used ones at reasonable prices.

Billboard, the entertainment industry rag, gave voice to what probably is the real impetus behind these bills – namely, the desire of the recording industry to block the sale of used CDs so it might sell more new ones:

“Laws that result in the curtailment of used CD sales likely would be considered good news to record labels and music distributor executives who have long abhorred the growing strength of the used CD market.  In fact, until the mid-1990’s labels used to put pressure on merchants who bought directly from them not to carry such merchandise.  At the time, some majors attempted to kill the strategy by initiating new policies to withhold cooperative advertising from retailers buying directly from them but selling used CDs, a move endorsed by some artists including Garth Brooks.”

Independent stores and buyers resisted, the Federal Trade Commission investigated, and the industry backed down.  Now, according to Billboard  some merchants say that sales of used CDs have grown from about 5% of store revenues to between 10%-20%.  Plus those sales are “more profitable.”

Hence the industry campaign to get state legislators to crack down on “theft.  The Administration is using a similar spin tactic for its copyright enforcement bill, this time on health.  A featured provision of that bill would establish draconian penalties for counterfeits that pose “health and safety dangers.” According to the Justice Department it could cover “counterfeit pharmaceuticals, counterfeit auto parts, aircraft parts – anything, really that would endanger life and limb.”

So they are suppressing off-brand products as safety risks.  “That’s the message,” a Justice Department spokesperson said, revealing more by his choice of words than he probably intended.  “That’s what resonates enough in the heart of the attorney general.”    This is the same Administration that wants to curb drastically the ability of ordinary Americans to seek damages in court for patented products that are defective and cause injury or death.

The concern here isn’t safety.   Did you notice that just before Congress considered a bill to permit Americans to buy drugs from Canada, news broke of tainted medicines coming in from China?   It is hard to shake the suspicion that a PR firm had a hand in all this. Spin curbs on the sales of used CDs as anti-theft.  Spin new protections for copyright and patent monopolies as protections for life and health.  Call it all a boon to the American worker.

Plus. Karl and Alberto get yet another way to tap our phones.