Do We Need Laws for ‘Booster Bags’?
“Booster bag” is the term for a bag that’s been lined with aluminum foil for the purpose of foiling anti-theft tags in/on retail merchandise in order to make easier the feat of taking said merchandise out of the store without paying. Today’s San Francisco Chronicle has an article about the practice and a proposed bill that would outlaw the bags.
(Before going further: I’m assuming for the purposes of discussion that the enforced and consensus views on the concepts of “property” and “theft” are valid and reasonable, because to do otherwise would lead this post way off topic.)
The legislation, which has been shelved for consideration until next year and was proposed by state Senator Dave Cogdill (a Republican representing Modesto), “would make it a crime to use, manufacture or possess booster bags”.
At first glance this might seem like a no-brainer: no “innocent” uses for the bags spring to mind, and it seems obvious that only dedicated shoplifters would be carrying those around.
Viewed from another angle, what you’re talking about is making certain types of bag effectively illegal. That might not sound too bad, but what about, for example, heavy-duty laptop cases (which might well feature surfaces that would block anti-theft tag signals)? Aluminium briefcases? You could argue that those aren’t “bags”, but does that mean a rigid contraption more box-like in nature would be fine? What about pockets? What about other parts of clothing?
These may sound like nitpicky objections, “technicalities”. But the law is made up of technicalities. Laws are technicalities, the technicalities that we as a society have passed (or acquiesced to having passed for us) as rules governing our conduct. They’re based on concepts (“justice”, “fairness”) that aren’t technicalities, but the laws themselves are dumb mechanistic implements, and they don’t tend to do well with things like “common sense”, so any “common sense” objection to the kind of nitpicking I’m doing isn’t too strong legally. Either that, or you come to a point where the jurors have to decide whether a “reasonable person” would agree (in this case) that something is a “bag” or not.
So, that’s one objection, that this proposed ant-bag law would either be vague and easily worked around, or vague and overly broad.
Another objection, one that I feel is more serious in principle, is that the real effect of the law would be to lower the burden of proof on prosecutors, and to criminalize intent. I’m not a fan of criminalizing intent; intent is primarily a mental state, and it should be clear that criminalizing mental states is totalitarian and grotesque. This law would criminalize intent because it criminalizes possession of the “booster bag” itself, and not what someone does with it.
In other words, we already have laws against shoplifting. If someone is caught shoplifting, they should be prosecuted for shoplifting. If we want extra penalties for shoplifting, then we should add those penalties directly, and not create entirely new categories of “criminality” for that purpose. If someone isn’t caught shoplifting but is caught with one of these bags, the new law is effectively prosecuting them for intent to shoplift. The bag itself isn’t harmful to society. We think (proceeding from my assumption above about the consensus view on “theft”) that shoplifting is harmful to society, so we criminalize shoplifting. But if someone has the bag and hasn’t done any shoplifting, we can’t prosecute them because there’s no way to prove that they were going to shoplift. There’s plenty of room for reasonable doubt (they might get scared and change their mind). This is one of the major reasons why intent usually isn’t criminalized, because you end up attempting both to prove what would have happened in an alternate universe and to read individual minds.
This legislation would get around that by eliminating any discussion of intent, but intent-to-shoplift is really what’s being addressed by it.
I don’t think that we really need to make intent-to-shoplift a crime. Making actual shoplifting a crime seems far enough.
In addition, we don’t need more laws of this kind. Pass enough laws like this, and you end up with a situation where all kinds of things are illegal for obscure reasons, and hence a large chunk of the population is (perhaps unknowingly) in breach of numerous laws a lot of the time. Since they can’t all be dealt with (not enough resources, and if we did apply enough resources, we’d have a fully totalitarian state), we get to selective enforcement, where law enforcement agents can choose people at random and have a good shot at finding something illegal about their conduct or possessions—a situation to be avoided at all costs, as it obviously leads to tremendous abuse of power.
We’re in this situation already in many ways, but laws like this would just make it worse.
14 Apr 2007 at 01:43
Interesting.
Bags: The article illustrates your point about what’s a bag, pointing out some things that aren’t bags already, like the back of a wheelchair. Or what if the whole bag is not lined, but just a pocket. How big can a pocket be? If just bags are illegal, they may start carrying small boxes that just the alarm part goes into, assuming that the gap to allow the clothing out of the box is not enough for the signal, or that a double layer will deal with that.
Intent: It seems intent to shoplift is already a crime, where I imagine the booster bag would count as evidence. A law may just encourage people to make them on the spot with foil, which might make it harder to gain evidence against them before they make the bag, though easier, as they would have to do more work in the shop. But if people are already making them in the shop, then it can’t be that hard, and it’ll just mean people bringing in the equipment to make one, rather than carrying one. And I can’t imagine making it illegal to carry a bag, aluminium foil and duct tape.
No innocent uses: With increasing amounts of RFIDs on items, there may well be innocent, privacy related, uses. You may not want to walk into a shop and have them know what you bought already in another shop. I don’t know how much information an unrelated reader can get, but I imagine they can, at the very least, count the tags, and probably tell where they came from, even if they can’t tell what the items are. And if the definition of bag is overly broad, well then, it might be illegal to block the RFID in your passport.
And what about science? People doing experiments with electromagnetism? Again, if the definition is too broad, it is, in effect, banning portable (or maybe all) Faraday cages. Unless the law specifies in a shop. Which it probably doesn’t. And even it it did, where could you buy them then :-)
Or you could just be paranoid. Perhaps you want to carry your mobile phone in a foil lined bag to protect you from the evil rays. It may be misguided, but that shouldn’t make it illegal.
Sorry, blabbing on. You got the wheels spinning.
16 Apr 2007 at 11:46
I meant to talk about the possible “innocuous” uses, specifically the anti-RFID stuff, but it slipped my mind. As for science, clearly science can only be permitted to go on in secure labs that have extensive government paperwork and backing.