“The nine most terrifying words in the English language are: ‘I’m from the government and I’m here to help.’”
So why on earth would the President of the United States speak against government help?
I don’t know his thoughts, but I know why I agree with him. It’s a concern with people who are trying to help, but don’t necessarily see the unintended consequences of their actions. People see a problem and think that “there oughtta be a law” without considering why there isn’t one. They just want to fix the problem. On a fundamental level, this demonstrates why the road to hell (or, if you are a fan of Friedrich Hayek, the road to serfdom) is paved with good intentions.
Here’s an example of how someone tried to make a good law and ended outlawing something that, perhaps, shouldn’t be outlawed.
The Utah State legislature was concerned about people using electronic devices to get around paying for legitimate bills. They were specifically concerned about people cloning cell phones to avoid paying their phone bill. Somebody said, “There oughtta be a law,” somebody else put it into action, and we found ourselves with Utah Code 76-6-409.6. Use of telecommunication device to avoid lawful charge for service – Penalty.
(1) Any person who uses a telecommunication device with the intent to avoid the payment of any lawful charge for telecommunication service or with the knowledge that it was to avoid the payment of any lawful charge for telecommunication service is guilty of:
(a) a class B misdemeanor, if the value of the telecommunication service is less than $300 or cannot be ascertained;
(b) a class A misdemeanor, if the value of the telecommunication service charge is or exceeds $300 but is not more than $1,000;
(c) a third degree felony, if the value of the telecommunication service is or exceeds $1,000 but is not more than $5,000;
(d) a second degree felony, if:
(i) the value of the telecommunication service is or exceeds $5,000; or
(ii) the cloned cellular telephone was used to facilitate the commission of a felony.
(2) Any person who has been convicted previously of an offense under this section is guilty of a second degree felony upon a second conviction and any subsequent conviction.
So what does this law actually criminalize? The title is a little misleading; it talks about using a telecommunication device to avoid lawful charge for services, but it does not specify the services. The code section itself, however, limits it to using telecommunication devices to avoid paying lawful charges for telecommunication services. But how does this work?
Remember, the intention was for cloned cell phones. The legislature doesn’t like to limit itself, though; if someone else came up with a closely related method that didn’t involve cloning cell phones, they wanted to be sure that the law covered that, too. As a result, they prohibited a broad spectrum of devices and behaviors.
The problem is that they prohibited too broad a spectrum. Let’s make one of our checklists.
- Any person who
- uses a telecommunication device
- with either the intent to avoid the payment of a lawful charge for telecommunication service
- or with the knowledge that it was to avoid the payment of any lawful charge for telecommunication service
So if you call up your phone service provider to dispute a lawful 35 cent rate increase, you are a (1) person who (2) uses a telecommunication device (3) with the intent to avoid the payment of a lawful charge for telecommunication service. Congratulations, you’ve just committed a Class B Misdemeanor.
Whatever you do, DON’T be a repeat offender on this one; you would face felony charges.
“But Mark,” you ask, “what about prosecutor discretion? The prosecutor wouldn’t charge someone based on that, would they?”
The unfortunate flip side to prosecutorial discretion is that prosecutors don’t have to exercise it, and many of them add as many charges as they can to an indictment. This gives them more room to negotiate later on. It’s easy to drop one class B misdemeanor to get the defendant to plea to two more serious counts. Many prosecutors will use their discretion as a bargaining chip instead of a way to disregard unjust laws and their application.
“So isn’t there something we can do to fix this? Can’t we just be really careful in drafting laws?”
People have been saying that for centuries. Unfortunately, legislators aren’t as careful in drafting laws as they could be. They have more important things to do, like getting reelected or finding other causes to champion.
One more thing: this is the sort of law that they used to get Al Capone. I do not condone his kind of behavior at all. I do, however, condemn the use of overly broad criminal statutes to put anyone in jail, especially if the police don’t have the evidence to do it right the first time.