CPSIA - Kafkaesque

I find myself thinking of the writings of Franz Kafka. Kafka's iconic novels, including The Metamorphosis and The Trial, are disorienting and nightmarish. I have read several of his novels and found them disturbing and provocative. I never felt I truly understood Kafka until it was pointed out to me that he is considered a "Jewish writer". Seen in the context of history, The Metamorphosis (1915) (the story of Gregor Samsa, a traveling salesman who overnight turns into a giant cockroach) and The Trial (published posthumously in 1925) (the story of Joseph K. who is arrested and charged with unspecified crimes to be tried by an unspecified court and judge on an unknown date) can be seen as eerily foretelling the dark events of the 20th Century to follow in the coming years, including the Holocaust and the secret purge trials of Joseph Stalin. Arguably, Kafka was also a legal commentator, anticipating how laws and the rules of society were on a downward trajectory in the 20th Century, imperiling the role of the individual in society. Kafka's three younger sisters died in the Holocaust, but Kafka himself never lived to see it - he died in 1924 of tuberculosis.

The disturbing metaphors of these novels ring in my ears. When you think about what followed Kafka's death, the novels take on a power that is beyond their words. The world he was describing incredibly, shockingly, came to pass years later.

I feel like a cockroach myself these days. Having worked for almost two decades to build our education company, and having done so responsibly, I find that we have been labeled a cockroach by our government for imagined transgressions. Actually, thousands of companies have been labeled cockroaches for the same unjustifiable reasons. Not unlike the experiences of Gregor Samsa, I find that we are being isolated, prevented from earning our living, and are shrinking from our former size. Samsa ended up bug-sized and incommunicado.

It is also true that I feel like we have been charged with unspecified crimes by an unidentified tribunal to be tried on a date unknown to me. I cannot figure out what we have done wrong or how we can repair the damage. Like Joseph K., I am looking for someone to defend us against charges that must be wrong - I have scoured my business life and cannot find the crime. Joseph K. ends up being convicted and is executed at the end of the novel. Joseph K.'s last words: "Like a dog."

The Trial in particular is a stunning metaphor for the dilemmas we face. The laws that underlie Joseph K.'s arrest and the unspecified charges are nowhere to be found. He cannot read them, he cannot rebut them. The "laws" exist only by the assertion of the mysterious people who have charged him with crimes. Using the same authority that enabled them to charge him with unspecified crimes, the unnamed court also convicts and sentences him. Unnamed people execute him. He has no recourse and dies alone.

Unwritten laws are subject to abuse. Kafka described the "legal system" of a totalitarian regime. Joseph Stalin used a similar "legal system" to his advantage in the decade following Kafka's death, engineering quick trials in the 30's to convict his enemies of vaguely described crimes, followed by execution within 24 hours. He was clever - he maintained the appearance of a legal system (there were charges, a court, a judge, lawyers, a "trial", even confessions) to preserve the illusion of individual rights. In fact, the system was designed to be manipulated to whatever ends he determined. He could assert he was motivated by justice and protection of the People.

The CPSC's ATV enforcement stay, justified by the agency's supposed "enforcement discretion", makes a mockery of the Rule of Law in children's product safety. If the "law" is not the one available on the CPSC website, then I must conclude it's a secret law present I know not where. The Commission's actions go far beyond exercise of discretion and far beyond their own precedent and statements on the operation of the law. While we certainly don't live in a totalitarian society, the activity of the CPSC in the ATV stay erodes the operation of law and is on a slippery slope. Tell me where it ends - I do not know.

This is a SERIOUS issue, and I hope both the CPSC and Congress takes it seriously. I do not wish to be subject to the risks Mr. Kafka highlighted, and further believe that the U.S. Constitution protects me from that possibility.

A quick side note: In a world with unwritten laws and secret enforcement stays known only on the whisper circuit, it will be impossible to administer your business. Let's not forget that the CPSC's stays (explicit or implicit) have NO effect without the cooperation of all 50 SAGs. Those SAGs were empowered to enforce the CPSIA as they see fit. Think of 51 secret laws now, not just one at the CPSC. In addition, thanks to the CPSIA, violations of any of a number of (unspecified) laws require 24 hour notice to the CPSC under Section 15 of the CPSA. For instance, this obligation would cover one missing warning label on your website. Yes, 24 hour notice for every violation, regardless of how trivial. AND any "knowing" (actual or imputed) violation of law may constitute the basis of a felony charge. How's that for coercive power for 51 different, independent regulators?

The final "gotcha" is the whistleblower provision. You cannot even THINK OUT LOUD about the most minor violations of the law in your office for fear of being turned in. Yes, cockroaches, the government has filled your office with spies to encourage you to toe the line. If you make a mistake or put something off until after your vacation, you are theoretically exposed to a disgruntled employee going "State's Evidence" against you and sticking around to collect a paycheck. The "relief" being offered in the guise of "enforcement discretion" will provide no relief whatsoever.

The imaginary law, the one in the heads of the CPSC as evidenced by the ATV enforcement stay, won't help us run our businesses. Rub your hands with glee, Congress, we are stuck with your awful bill EVEN IF the CPSC exercises its "enforcement discretion". I know you won't like the comparison, but I think Mr. Stalin would be impressed, guys. Like a dog. . . .

I don't care how desperate the 28 Senators are. Fix the damn law.