Sunday, April 16, 2006

Texas's Anti-Lab Equipment Law: A Debate

The other day Cory Doctorow of Boing Boing posted about a cool idea in interior design: using lab equipment as kitchen containers. Reader Aaron wrote in to point out the implications of this under Texas law:
"Texas actually regulates ownership of some labware; owning an Erlenmeyer, as in the article, can land you in jail (Texas state code, 481.040):"

"Chemical laboratory apparatus" means any item of equipment designed, made, or adapted to manufacture a controlled substance or a controlled substance analogue, including:

(A) a condenser;

(B) a distilling apparatus;

(C) a vacuum drier;

(D) a three-neck or distilling flask...
Link. This prompted me to check out the Texas law and write an email to Cory:

It's not owning lab equipment in Texas that will land you in jail--it's receiving lab equipment without a permit from the Department of Public Safety. It's ostensibly a controlled-substance-abuse law. Here's the PDF of the application. Presumably, so long as you don't have a record for running a meth lab, you don't state that you intend to use the flasks for a meth lab, and you allow DPS to inspect your meth-lab-free premises, you'll be okay acquiring flasks for your balsamic vinaigrette.

-The Good Reverend
And this, of course, prompted a multi-email debate, reproduced below the fold. In don't think Cory will mind my copying his words, since the freedom to copy information is one of his ideals.

Cory wrote back:
That sounds suspiciously like, "It's illegal to own lab-glass in
Texas, unless you get a regulatory permission." There isn't much
other kitchen apparatus that requires that you not be operating a
meth lab, allow anyone to inspect your premises, etc. Substitute
"garlic press" for "flasks" below and tell me if you think there's a
substantive untruth in saying it's illegal to possess lab-glass in TX.

And I couldn't leave well enough alone:
More than likely, the Texas legislators who passed the law weren't thinking about lab glass being used as kitchen containers. If it's interesting and novel enough to blog about, it's probably not something Texas politicians imagined. To them, lab equipment could be used for (1) science in schools, (2) science in private labs, (3) science as a hobby, and (4) making illegal substances. They probably passed the law to help sort out (3) from (4). I'm with you in thinking it sounds unusual and draconian, but it also sounds like they weren't trying to pass an absolute prohibition on casual home use of lab equipment for whatever unusual but legal purposes someone could dream up.
Cory questions the constitutionality of this law:
Sure -- it's a law that lots of people will be guilty of, but that
police can selectively enforce against. That's an old Stalinist (and
pre-Stalinist, like Inquisition) trick: make everyone guilty of
something, then go after people who are unpopular or troublesome on
the legal pretense of their "illegal" behavior instead of the thing
that's a thorn in the state's side. For example, the RIAA picks on
college kids who write general-purpose search-tools like FlatLAN
because they don't like search-engines (which necessarily find MP3s
as well as other kinds of files), but they sue them for the file-
sharing that every college kid is engaged in, not for writing search

If the Texas legislators wanted to prevent meth labs, they'd pass a
law that said "It's against the law to use lab equipment to make
meth." That's not even close to what the law says. The law says,
"It's against the law to own lab equipment that could be used to make
meth." Then it enumerates a ton of stuff you'd find in a mid-range
chemistry set at the local Toys R Us.

That's no way to write a law. It's not even Constitutional. It's
certainly not the actions of a fair and equitable legislature looking
to create a narrowly tailored police power that isn't subject to
abuse, but that will enable a law enfocement to get rid of a genuine
scourge (having lived in San Francisco's Mission district for four
years, getting repeately mugged by drug-addicts and passing human
wrecks sleeping and defecating in the street, I have no great love
for the impact of the drug war on America's cities, and I'm all for
shutting down meth labs, but not by outlawing tapered glass
containers -- which won't eliminate meth labs anyway).
Which is when I decide to go all law school on him:
I agree that it's a stupid law, and I would probably vote for a representative who ran on the promise of changing it, but I don't think it's unconstitutional. Faced with a constitutional challenge, a court would inquire whether the state's interest (reducing or preventing the manufacture of drugs) is permissible (clearly it is) and whether the law is rationally related to it (surely it's rational to believe that if you make it harder to get equipment necessary to make drugs, you'll reduce the making of drugs). Yes, it's over-inclusive, but the bureaucratic red tape involved in the permit structure is actually designed to limit that over-inclusiveness. It's not that you can't own flasks (if you already have them, keep them), and it's not even that you can't buy them--it's that you can't buy them without going through the bureaucracy. It's silly, I know. And it's not going to solve the meth problem. I don't even think it's a real step toward solving the meth problem, or that it adequately preserves the liberty of innocent people. But you wouldn't be irrational if you disagreed with me on that.

It certainly would be unconstitutional as applied if the police only enforced it against a protected group. I'm certain that it's selectively enforced--police probably enforce it against makers of illegal drugs and not against people who use lab glass as kitchen containers. I can only find two reported cases that deal with it, and both of them involve illegal drug manufacture. But drug manufacturers aren't a protected class--they can't say that their constitutional rights were violated because they were discriminated against as drug manufacturers. If the police were only enforcing the law against women, or homosexuals, or people of Lithuanian descent, or Democrats, then it would look a lot more like an equal protection violation. But they're not, so there is no violation.

As for the RIAA--don't get me started. They're evil, and beyond evil: stupid evil. And the enforcement of copyright law in the United States is a joke. But when the RIAA selectively sues people it doesn't like, that's not the same as the police selectively arresting people they don't like. The RIAA isn't the same as the state.
Cory makes a few points about my argument:
Also: regulating the possession of mobile phones would make it easier
to prevent the sale of drugs.

"I'm certain that it's selectively enforced--police probably enforce it against makers of illegal drugs and not against people who use lab glass as kitchen containers." Or against people they suspect of doing something bad but can't prove
anything against and need a convenient excuse to lock them away.

A law designed to capture the innocent and guilty alike and then be
selectively enforced is an attractive nuisance, whether it is being
used by private actors or the state.
And then I get the last word, probably because he got bored:
Regulating the possession of mobile phones in this manner might implicate fundamental constitutional rights, like free speech, and therefore be unconstitutional. But beyond that, any legislators who vote for it would be out of a job next term, because mobile phones are more important to more constituents than lab equipment. That's probably enough of a deterrent to prevent such a law from ever passing.

Police couldn't lock anyone away without a judge agreeing. Unless the accused has a prior record of related offenses, unlawful transfer or receipt of laboratory apparatus is a state-jail felony, which means, in most cases, the judge would sentence a convict to probation. In the interests of equity, if the police for whatever reason arrested someone for storing paprika in an unlicensed test tube, a judge would probably dismiss the charge or reduce it to a fine.

I guess the theory behind the copyright law is that it could be enforced against all violators, and the state wouldn't treat different violators differently if it was. But the state also can't force copyright holders to sue everyone who infringes their copyright. If the RIAA wants to go on suing people stupidly, that's not really the law's fault. At its core, copyright protection makes sense--if you create something, you get to say who can make a copy of it, and when, and how, at least for a limited time. You, for instance, allow everybody to copy certain of your works, with very few limitations. But copyright gives you the right to set those limitations. It's the recently developed theories of enforcement of copyright that don't make sense--the secondary liability, the targetting of would-be aficionados. The state may be to blame for the former, but not the latter.
That's where the debate stopped. My money's on me winning, but that's just because it's my money, and it's me.

Indexed by tags law, crime, Texas, lab equipment, Boing Boing, Cory Doctorow, email, copyright, police, Constitution.


Anonymous Anonymous said...

Interesting article however, I am perplexed by the fact that you do not see a constitutional issue with a law that

#1) Requires you to prove to the state that you are an innocent law abiding citizen.
#2) Requires you to give up your 4th amendment right to be secure in your persons, houses, papers, and effects.

All to buy glass ware that, from my reading of the constitution of the United States and the Texas constitution, they dont have the privilege of regulating.

We must remember that our government is restricted to doing no more than is allowed it in the constitution. This is to protect "The People" from an over reaching government. Seems to me that they dont have the privilege of regulating the ownership of glassware.

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