Obsidian Wings

Progress In Iraq (Not!)

by hilzoy

From the NYT:

"An independent commission established by Congress to assess Iraq’s security forces will recommend remaking the 26,000-member national police force to purge it of corrupt officers and Shiite militants suspected of complicity in sectarian killings, administration and military officials said Thursday.

The commission, headed by Gen. James L. Jones, the former top United States commander in Europe, concludes that the rampant sectarianism that has existed since the formation of the police force requires that its current units “be scrapped” and reshaped into a smaller, more elite organization, according to one senior official familiar with the findings. The recommendation is that “we should start over,” the official said.

The report, which will be presented to Congress next week, is among a number of new Iraq assessments — including a national intelligence estimate and a Government Accountability Office report — that await lawmakers when they return from summer recess. But the Jones commission’s assessment is likely to receive particular attention as the work of a highly regarded team that was alone in focusing directly on the worthiness of Iraq’s army and police force."

Start over. On the entire national police force. This is hardly encouraging news, though it's not a surprise either, especially not after "the working draft of a secret document prepared by the U.S. embassy in Baghdad" obtained by the Nation, which says the following about the Ministry of the Interior (MOI), which is in charge of the police force:

MOI is a 'legal enterprise' which has been co-opted by organized criminals who act through the 'legal enterprise' to commit crimes such as kidnapping, extortion, bribery, etc."

Meanwhile, the National Security Network has compiled a list of problems with assessing the administration's claims that violence in Iraq has been reduced:

"For the past month, the Bush Administration and General Petraeus have asserted that a drop in violence is evidence that the "surge" is working. Unfortunately, the evidence is difficult to validate. Underreporting civilian deaths is, sadly, nothing new. A number of U.S. agencies differ with the Administration's assessment that sectarian violence is down and in fact there are inconsistencies within the Pentagon's own reporting. The Iraq Study Group concluded that in the past car-bombs that don't kill Americans, murders, and inter-ethnic violence were not tracked in order to demonstrate reduced violence. Recent analysis indicates that some of these trends continue. More importantly, the military has refused to show the public any evidence to support the claim that violence is down."

The full list of issues with the numbers is worth reading in its entirety. One item is particularly striking:

"There were significant revisions to the way the Pentagon’s reports measure sectarian violence between its March 2007 report and its June 2007 report. The original data for the five months before the surge began (September 2006 through January 2007) indicated approximately 5,500 sectarian killings. In the revised data in the June 2007 report, those numbers had been adjusted to roughly 7,400 killings – a 25% increase. These discrepancies have the impact of making the sectarian violence appear significantly worse during the fall and winter of 2006 before the President’s “surge” began."

Spencer Ackerman reports this as well, with useful graphs. As he points out, this might be an artifact of a change in methodology. In any case, it would be nice if the Pentagon explained what accounts for a 25% increase in its own figures for the same month.

It would also be nice if the administration would share with us its basis for the claim that violence in Iraq is coming down. But from where I sit, it doesn't seem to be true. (See, for instance, Kevin Drum.)

And it certainly won't go down if the Iraqis have to disband their police force.

[UPDATE: More on the Pentagon's numbers below the fold.]

More On "The Antitotalitarian Left"

by hilzoy

(Note: this is a response to a post on Andrew Sullivan's blog. Most of the posts I've written while guest-blogging there have fit both places; this one, however, is more a Sullivan post. But I put it here anyways. If you want the background, here's the post I'm responding to, and here's Steve Clemons' response, which he posted before I posted this.)

I agree with Steve Clemons' response to Jamie's post 'Whither the Antitotalitarian Left?'. But I am also puzzled by one other point that Jamie makes:

"With the impending realist takeover of the Democratic Party, anti-totalitarianism will recede, and this is unfortunate. Whereas once the AFL-CIO had a large and effective international office, you'd be hard-pressed to hear, for instance, what they're doing for Iraqi trade-unionists. (...)

Liberal interventionism, as a doctrine, has worked and ought to stay alive in the hearts of those claiming to be liberals--in spite of the failures of Iraq. Beyond the particularities of specific military interventions, what is most worrying is that the left has become so embittered by the response to 9/11 that it has withdrawn into a feral crouch from which it is more suspicious of what the Western democracies do to protect themselves than it is with the plight of oppressed people abroad. (...)

We may very well have a Democratic president. But what will inform their foreign policy values now that the Democratic Party is not animated by the anti-totalitarianism of old, but rather a mere hatred for the president and a serious lack of faith in even the potential role America can play in the world?"

I do not question the claim that "anti-totalitarianism" has receded in the Democratic Party. This is surely true. And there's a good reason for it: totalitarianism is no longer the major danger that we face abroad. Despite George W. Bush's attempts to paint al Qaeda as a totalitarian group bent on imposing a Caliphate on the world, al Qaeda is not a totalitarian organization, and its natural allies are not totalitarian regimes but failed states. In fact, there are not that many totalitarian states presently in existence; of those, some (e.g., Myanmar) pose no threat to us, while others threaten us not because they are totalitarian, but for some other reason. (E.g., North Korea threatens us because of the possibility that it might export its weapons, not its ideology.)

Our central foreign policy problems -- for instance, failed states and the violence they foster, the rise of China, Iraq and the risk of further destabilization in the Middle East and Pakistan, the Israeli/Palestinian conflict, the collapse of our moral standing in the world in general and the Middle East in particular -- have very little to do with totalitarianism. For this reason, it would be odd if anti-totalitarianism were still the driving force behind liberal foreign policy -- not quite as odd as if we were all animated by fear of German militarism or the Bonapartist menace, but odd nonetheless.

I am, however, puzzled by the claim that the Democratic Party is about to undergo a "realist takeover", and that it is animated by "a mere hatred for the president and a serious lack of faith in even the potential role America can play in the world." What is the evidence for this claim? As best I can tell, the only evidence Jamie provides for his assertions about what motivates Democrats is his link to this article about a new foreign policy think-tank. It describes the people in that think-tank as believing that Democrats ought to be less interventionist and more realistic. But it presents very little evidence that Democrats are in fact following that prescription; in fact, when the article Jamie cites characterizes Democratic foreign policy as a whole, it is carefully noncommittal (e.g., "Just how much influence their argument is having on the front-runners in the Democratic presidential race is not immediately apparent.")

The article does argue that some Democratic candidates have moved in realist directions, but its evidence is fairly weak. For instance, to support the claim that this is true of Hillary Clinton, it notes that in a recent speech on her foreign policy priorities, she "listed national interest first and values last, a slight shift, but a significant one to the finely-attuned ears of the foreign policy establishment." As causes for concern go, the order in which Hillary Clinton lists her points doesn't rank very high on my list. Moreover, as the article notes, and as I argued earlier, Barack Obama is not a foreign-policy realist at all. In general, the article describes the Democratic Party as one in which there is a "a genuine clash of worldviews", not one that's about to be taken over by anyone. So I'm not sure how linking to this article supports Jamie's position.

There are Democrats who think that the idea of promoting democracy abroad has been so tarnished by George W. Bush that we should leave it aside for now and concentrate on rebuilding our own moral credibility. This is not exactly foreign policy realism: many people who hold this view think that rebuilding our moral credibility involves doing straightforwardly good things in other countries, and generally reclaiming the right to stand for our values. Others, myself included, think that we should make the case that George W. Bush has never been serious about promoting democracy to begin with, rather than ceding the term 'promoting democracy' to him. Some Democrats (and Republicans) are tempted to conclude that the United States has neither the patience nor the wisdom to try to promote our values abroad at all. But I don't think many of us are animated solely by "mere hatred for the president and a serious lack of faith in even the potential role America can play in the world", especially not if we're talking about policy makers and advisors, as any discussion of a "takeover" of the Democratic Party must. I'd be interested in any evidence to the contrary that Jamie might present.

That brings me to my next point, which I'll discuss below the fold.

Larry Craig's Own Personal Absalom, Absalom!

by publius

Over at Volokh, Dale Carpenter has an interesting, and touching, post on the GOP’s dysfunctional relationship with homosexuality. It’s more than hypocrisy, Carpenter says, something more complicated. I think he understates the base’s visceral dislike for homosexuality (which is what’s driving all this in the first place), but it’s still an interesting post:

The big, open secret in Republican politics is that everyone knows someone gay these days and very few people – excepting some committed anti-gay activists – really care. . . . So to keep religious conservatives happy the party has done two things. First, it has steadfastly resisted efforts to ease anti-gay discrimination in public policy, even when Republican politicians know better. . . . Second, to keep the talent it needs and simply to be as humane and decent as politically possible toward particular individuals, the party has come up with its own unwritten common-law code: you can be gay and work here, we don’t care, but don’t talk about it[.]

This uneasy mix of the public and the private is not exactly what I’d call hypocrisy. It’s perhaps better described as a form of ideological schizophrenia: private acceptance welded to public rejection. It’s a very unstable alloy.

For the closeted gay Republican, this alloy means a life of desperation and fear and loneliness, of expressing one's true feelings only in the anonymity of the Internet, of furtive bathroom encounters, of late nights darting in and out of dark bars, hoping not to be seen. It means life without a long-term partner, without real love.

In reading this, I thought of Faulkner’s Absalom, Absalom! There are some fascinating parallels between Mr. Craig and Mr. Sutpen’s tragic falls. Major spoilers below, so I’ve put it below the fold.

Benchmarks: Then And Now

by hilzoy

The President's Address to the Nation, January 10, 2007:

"I've made it clear to the Prime Minister and Iraq's other leaders that America's commitment is not open-ended. If the Iraqi government does not follow through on its promises, it will lose the support of the American people -- and it will lose the support of the Iraqi people. Now is the time to act. The Prime Minister understands this. Here is what he told his people just last week: "The Baghdad security plan will not provide a safe haven for any outlaws, regardless of [their] sectarian or political affiliation." (...)

A successful strategy for Iraq goes beyond military operations. Ordinary Iraqi citizens must see that military operations are accompanied by visible improvements in their neighborhoods and communities. So America will hold the Iraqi government to the benchmarks it has announced."

Background Briefing by Senior Administration Officials, January 10, 2007:

"We have made very clear that the Iraqi government needs to meet the benchmarks it has set in order to do the things on which a broader reconciliation are required. And you all know them. They're the oil law; they're de-Baathification, narrowing the limitations of the de-Baathification law; they're provincial elections to bring the Sunnis back into the political process at the local level. There is also continuing, and we would hope even accelerating the transition of security responsibility to Iraqis elsewhere in the country and in Baghdad, because if this works it will actually enable Iraqis sooner to provide security in Baghdad. And we have -- would like, and the Iraqis have made clear that one of their benchmarks is to take responsibility for security in the whole country by the end of the year. (...)

They have set forward this plan. They have brought forward these benchmarks. And what the President is saying is, fine, we will judge you now less on your words and more on your performance."

Today, after news that the GAO will report that Iraq has failed to meet its benchmarks:

"An internal White House memorandum, prepared to respond to the GAO findings, says the report will claim the Iraqis have failed on at least 13 benchmarks. It also says the criteria lawmakers set for the report allow no room to report progress, only absolute success or failure.

The memo argues that the GAO will not present a "true picture" of the situation in Iraq because the standards were "designed to lock in failure," according to portions of the document read to the AP by an official who has seen it."

And:

"At the White House, officials argued that the GAO report, which was required by legislation President Bush signed last spring, was unrealistic because it assigned "pass or fail" grades to each benchmark, rather than assessing whether the Iraqis have made progress toward reaching the benchmark goals.

"A bar was set so high, that it was almost not to be able to be met," White House deputy press secretary Dana Perino said."

(Emphasis added in all quotes.)

The GAO Report On Iraq

by hilzoy

From the Washington Post:

"Iraq has failed to meet all but three of 18 congressionally mandated benchmarks for political and military progress, according to a draft of a Government Accountability Office report. The document questions whether some aspects of a more positive assessment by the White House last month adequately reflected the range of views the GAO found within the administration.

The strikingly negative GAO draft, which will be delivered to Congress in final form on Tuesday, comes as the White House prepares to deliver its own new benchmark report in the second week of September, along with congressional testimony from Army Gen. David H. Petraeus, the top U.S. commander in Iraq, and Ambassador Ryan C. Crocker. They are expected to describe significant security improvements and offer at least some promise for political reconciliation in Iraq.

The draft provides a stark assessment of the tactical effects of the current U.S.-led counteroffensive to secure Baghdad. "While the Baghdad security plan was intended to reduce sectarian violence, U.S. agencies differ on whether such violence has been reduced," it states. While there have been fewer attacks against U.S. forces, it notes, the number of attacks against Iraqi civilians remains unchanged. It also finds that "the capabilities of Iraqi security forces have not improved."

"Overall," the report concludes, "key legislation has not been passed, violence remains high, and it is unclear whether the Iraqi government will spend $10 billion in reconstruction funds," as promised. While it makes no policy recommendations, the draft suggests that future administration assessments "would be more useful" if they backed up their judgments with more details and "provided data on broader measures of violence from all relevant U.S. agencies.""

Here's a graphic comparing the GAO and the administration's views on which benchmarks have been met. The three that both agree have been met include: "Establishing supporting political, media, and economic committees in support of the Baghdad security plan", "Establishing all planned joint security stations in neighborhoods across Baghdad", and "Ensuring the rights of minority political parties in the Iraqi legislature are protected." Two more are graded "mixed" -- "Enacting and implementing legislation on procedures to form semi-autonomous regions" and "Allocating and spending $10 billion in Iraqi revenue for reconstruction projects including delivery of essential services, on an equitable basis." The GAO finds that progress on all the rest has been unsatisfactory. "The rest" includes de-Baathification, amending the Constitution, the petroleum law, decreasing violence, training the Iraqi army, disarming militias, establishing electoral laws and so forth -- little things like that.

But hey: at least we've formed some committees!

I found this bit particularly interesting:

"The person who provided the draft report to The Post said it was being conveyed from a government official who feared that its pessimistic conclusions would be watered down in the final version -- as some officials have said happened with security judgments in this month's National Intelligence Estimate on Iraq."

And the GAO is clearly right on this point: "future administration assessments "would be more useful" if they backed up their judgments with more details and "provided data on broader measures of violence from all relevant U.S. agencies." If the administration wants to ask the American people to go on supporting a policy that seems to have failed, they owe us a detailed explanation of why they think that support would do more than postpone the inevitable.

Uh, No.

by hilzoy

Apparently, the editors responsible for keeping the Washington Post's style spare and lean were on strike today:

"Consider the bathroom stall, that utilitarian public enclosure of cold steel and drab hue.

It can be a world of untold secrets, codes and signals as invitations to partake. Like foot-tapping: Who knew?

Let us peer in, shall we?"

No, let's not.

Democrats: Grow A Spine

by hilzoy

From the Washington Post:

"A growing clamor among rank-and-file Democrats to halt President Bush's most controversial tactics in the fight against terrorism has exposed deep divisions within the party, with many Democrats angry that they cannot defeat even a weakened president on issues that they believe should be front and center.

The Democrats' failure to rein in wiretapping without warrants, close the detention facility at Guantanamo Bay or restore basic legal rights such as habeas corpus for terrorism suspects has opened the party's leaders to fierce criticism from some of their staunchest allies -- on Capitol Hill, among liberal bloggers and at interest groups.

At the Democratic-leaning Center for American Progress yesterday, panelists discussing the balance between security and freedom lashed out at Democratic leaders for not standing up to the White House. "These are matters of principle," said Mark Agrast, a senior fellow at the center. "You don't temporize." (...)

The terrorism issue came to a head early this month in an explosive final closed-door House Democratic Caucus meeting before the August recess. Reps. Hastings, Moran, Melvin Watt (N.C.), John F. Tierney (Mass.) and Jerrold Nadler (N.Y.) pleaded with party leaders not to bring to a vote a White House bill extending the administration's authority to listen in on electronic communications from abroad without a warrant.

Conservative Democrats, including Rep. Allen Boyd (Fla.), argued just as vociferously that Democrats dare not leave on vacation without passing the White House bill.

"The most controversial matters are the ones that people use to form their opinions on their members of Congress," said Rep. Lincoln Davis (D-Tenn.), who voted for the administration's bill. "I do know within our caucus, and justifiably so, there are members who have a real distaste for some of the things the president has done. But to let that be the driving force for our actions to block the surveillance of someone and perhaps stop another attack like 9/11 would be unwise.""

Dear Rep. Davis: this is not about "distaste". Our objections to allowing the administration to listen in on us without warrants is not aesthetic. It concerns some of the most fundamental principles in our Constitution, and the freedoms we take for granted as Americans. Distaste has nothing to do with it.

"Such divisions will not be easy to bridge in the coming weeks. Republicans have said that Democrats who are trying to close the Guantanamo Bay prison want to import terrorists to Americans' back yards. And they have said that those pushing to restore habeas corpus rights want to give terrorists the legal rights of U.S. citizens.

"People say to me, 'Well, what about the 30-second spots?' " said Patrick J. Leahy (D-Vt.), chairman of the Senate Judiciary Committee, referring to attack ads. He is pushing a bill to restore habeas corpus.

"If you just say you're standing up for civil liberties, the American people are with you, but if you say terrorism suspects should have civil liberties, it stretches Americans' tolerance," said Sen. Benjamin L. Cardin (D-Md.), who along with Hastings represents Congress on the Commission on Security and Cooperation in Europe, a human rights monitor. "It's a tough issue for us.""

What about the 30-second spots? Dear God, Democrats: grow a spine. Figure out that if there's no principle for which you would willingly lose your office, then you don't deserve to hold it in the first place. The liberties enshrined in our Constitution matter more than your political careers.

And even if they didn't, this is not a moment when you need to be afraid. People don't like the Republicans. You are winning. Grow up and deal with it.

"If anything, the habeas corpus and Guantanamo Bay issues will be tougher. In June, nearly 150 House Democrats signed a letter by Moran urging the shuttering of the prison. But Moran said last week that he no longer thinks he could muster the votes to pass the measure, even though the move is supported by former secretary of state Colin L. Powell, Sen. John McCain (R-Ariz.) and Defense Secretary Robert M. Gates. Republicans appear to have won the argument with their accusation that Democrats want to import terrorists.

A restoration of habeas corpus rights may have a better chance. Leahy said he will push the issue next month, and legislation co-sponsored by Conyers and Ike Skelton (D-Mo.), chairman of the House Armed Services Committee, is likely to move through their committees this fall.

But political fear still hovers over any legislation that touches on the fight against terrorism, which, for Democrats, may be the new third rail of politics.

"We can do this, but you have to keep in mind Republicans care more about catching Democrats than catching terrorists," said Rep. Rahm Emanuel (Ill.), chairman of the House Democratic Caucus. "They have spent years taking Roosevelt's notion that we have nothing to fear but fear itself and given us nothing but fear.""

Oh, come on. As I said above, the Republican party is not very popular these days. Moreover, it's not as though it's hard to craft a really inspiring message on these issues. We're not talking about some arcane feature of patent law that it's genuinely difficult to get people to care about; we're talking about the freedoms we all claim to cherish. Honestly, if Democrats can't figure out how to make a winning issue of keeping the government from being able to throw you in jail without having to explain themselves to anyone, or at least to prevent it from outweighing what looks to be their pretty serious electoral advantage in 2008, they must be brain dead. And if they can't be bothered to support our Constitution if there's any possibility that it might cost them politically, then their love of their country must be dead as well.

The article I've quoted makes it clear that not all the Democrats feel this way. 41 Democrats voted for the FISA bill, but 181 voted against it. Moreover, even those 41 are generally not falling all over one another in their eagerness to gut our civil liberties, as many Republican members of Congress are.

Still, the fact that there's even a debate about this in the Democratic caucus is sickening.

Katrina: Two Years Later

by hilzoy

When George W. Bush finally managed to get to New Orleans after Hurricane Katrina, he said this:

"Tonight I also offer this pledge of the American people: Throughout the area hit by the hurricane, we will do what it takes, we will stay as long as it takes, to help citizens rebuild their communities and their lives. And all who question the future of the Crescent City need to know there is no way to imagine America without New Orleans, and this great city will rise again."

The electricity was turned on to light his speech, and then turned off again. That should have told us everything we needed to know about how much this President's pledge was worth. And in case we were still in doubt, the announcement that he had put Karl Rove in charge of reconstruction made it clear how serious he was about rebuilding one of America's greatest cities.

Now, two years later, Douglas Brinkley writes about what has happened since then:

"Over the past two years since Hurricane Katrina, I've seen waves of hardworking volunteers from nonprofits, faith-based groups and college campuses descend on New Orleans, full of compassion and hope.

They arrive in the city's Ninth Ward to painstakingly gut houses one by one. Their jaws drop as they wander around afflicted zones, gazing at the towering mounds of debris and uprooted infrastructure.

After weeks of grueling labor, they realize that they are running in place, toiling in a surreal vacuum.

Two full years after the hurricane, the Big Easy is barely limping along, unable to make truly meaningful reconstruction progress. The most important issues concerning the city's long-term survival are still up in the air. Why is no Herculean clean-up effort underway? Why hasn't President Bush named a high-profile czar such as Colin Powell or James Baker to oversee the ongoing disaster? Where is the U.S. government's participation in the rebuilding?
And why are volunteers practically the only ones working to reconstruct homes in communities that may never again have sewage service, garbage collection or electricity?

Eventually, the volunteers' altruism turns to bewilderment and finally to outrage. They've been hoodwinked. The stalled recovery can't be blamed on bureaucratic inertia or red tape alone. Many volunteers come to understand what I've concluded is the heartless reality: The Bush administration actually wants these neighborhoods below sea level to die on the vine."

A report from the Institute of Southern Studies gives some details:

"Although it's tricky to unravel the maze of federal reports, our best estimate of agency data is that only $35 billion has been appropriated for long-term rebuilding.

Even worse, less than 42 percent of the money set aside has even been spent, much less gotten to those most in need. For example:

* Washington set aside $16.7 billion for Community Development Block Grants, one of the two biggest sources of rebuilding funds, especially for housing. But as of March 2007, only $1 billion -- just 6 percent -- had been spent, almost all of it in Mississippi. Following bad publicity, HUD spent another $3.8 billion on the program between March and July, leaving 70 percent of the funds still unused.

* The other major source of rebuilding help was supposed to be FEMA's Public Assistance Program. But of the $8.2 billion earmarked, only $3.4 billion was meant for nonemergency projects like fixing up schools and hospitals.

* Louisiana officials recently testified that FEMA has also "low-balled" project costs, underestimating the true expenses by a factor of four or five. For example, for 11 Louisiana rebuilding projects, the lowest bids came to $5.5 million -- but FEMA approved only $1.9 million.

* After the failure of federal levees flooded 80 percent of New Orleans, the U.S. Army Corps of Engineers received $8.4 billion to restore storm defenses. But as of July 2007, less than 20 percent of the funds have been spent, even as the Corps admits that levee repair won't be completed until as late as 2011.

The fact that, two years later, most federal Katrina funds remain bottled up in bureaucracy is especially shocking considering that the amounts Washington allocated come nowhere near the anticipated costs of Gulf rebuilding.

For example, the $3.4 billion FEMA has available to recover local public infrastructure would only cover about one-eighth of the damage suffered in Louisiana alone. But this money is spread across five states -- Alabama, Florida, Louisiana, Mississippi, and Texas -- and covers damage from three 2005 hurricanes, Katrina, Rita and Wilma."

While George W. Bush celebrated John McCain's birthday, this administration left people to die in the days after Hurricane Katrina. Now it is leaving the city of New Orleans to die.

A Question of Motives

by publius

Over at the TPM empire, I see that Republican Senators Norm Coleman (MN) and John McCain have called on Craig to resign. That's quite a step. To be cynical, though, they were likely motivated to take this extreme step for two completely different reasons. Coleman -- being up for re-election in a Blue state -- doesn't want to embrace anything smelling of gay-bashing. Instead, he wants to distance himself from the Republican Party, which is unpopular in his state at the moment.

McCain, by contrast, needs to score points with social conservatives who disapprove of homosexuality. He certainly isn't trying to distance himself from the party. In fact, it's just inconceivable to me that McCain really deep in his heart wants Craig to resign.

I suppose the fire will spread, and other Senators will step forward. But the motivations will be quite diverse. The leadership has image in mind. Vulnerable Republicans have distancing-from-party in mind. And some socially conservative Senators will feel pressured to speak out because it involves homosexuality. All in all, it looks a bit perfect-stormish for Craig.

Copyright Law v. iPhone Freedom Fighters

by publius

Big news brewing on the iPhone front. As you may have heard, a teenager (not Miss Teen South Carolina, sources report) posted instructions about how to “unlock” the iPhone. Unlocking it means you can use it on other networks and not just AT&T’s. There’s a little wrinkle though – copyright law.

I’m still getting my head around it, but here’s a good introduction from Jennifer Granick, the law professor who successfully obtained an “exemption” last year from the U.S. Copyright Office allowing people to unlock their cell phones. If you’re a little confused about how copyright fits in here, you should be. It’s absurd.

I may revise this later, but here’s the gist as I understand it (admittedly not well). As many of you know, digital copyright holders (movies, music, etc.) often add locks or controls to prevent unauthorized use or infringement. To make sure these locks work, the DMCA (i.e., copyright law protecting digital work) includes an “anti-circumvention” provision. That means you can violate copyright law not merely by infringing on the work itself, but by bypassing (or “circumventing”) these locks and controls.

Ok, on to wireless phones. Wireless phones include software (“firmware”) that allows them to connect with networks – that’s what makes them work. Wireless carriers, however, use various types of “locks” to make sure your phone only works on their network. (Sometimes they freeze the software configuration, sometimes they prevent new software from working, etc.). Well, smart people starting figuring out how to get around these locks. Wireless carriers didn’t like that. So, some sharp attorney somewhere realized that the cell phone firmware was copyrighted. And, well, you can guess the rest.

Yes, that’s right, wireless carriers starting suing “unlockers” under copyright law citing the anti-circumvention provisions (accompanied by hefty fines). Usually, people who circumvent are trying to, say, unlock a door to watch a movie. Here, by contrast, they’re trying to unlock a door to turn off the damn movie and watch a different one. But no matter, it’s a copyright violation, so say the wireless carriers.

Long story short – Professor Granick petitioned the Copyright Office and eventually obtained a ruling that cell phone unlocking was “exempt” from the anti-circumvention provision. As a result, you can’t violate copyright law by unlocking your cell phone. Now that doesn’t necessarily mean unlocking will sweep the nation – it just means that carriers can’t use copyright law to prevent you from unlocking your phone (they can still do so contractually through a service agreement).

Here’s the catch though. The copyright exemption only covers people who unlock the phone. It doesn’t necessarily cover people who tell you how to do it (people like our iPhone teenager friend who won’t be getting a corporate fruit basket from AT&T this year). These people could still be liable (criminally liable, in fact) even though the underlying act of unlocking is exempt.

As Professor Granick explains, the iPhone drama could bring this issue to a head. It could also bring to a head the issue of whether turning off or reconfiguring cell phone firmware is covered under the DMCA in the first place (then the exemptions wouldn’t matter because it wouldn’t be illegal in the first place).

Again, I’m not 100%, but that’s my tentative understanding. Feel free to add or correct me in the comments.