Saturday, April 25, 2009

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.


Barbara said...

I sometimes wonder if all of this is intended to switch schools over completely to digital education and banish books that tell an unrevised, politically incorrect history. Book burning is a sin to the left, but books in the landfill are to be the law of the land if this isn't fixed.

Anonymous said...

Thank you for fighting on. As someone who opened a business in the midst of a recession thinking this was a way to help my community, and quite possibly earn a living at the same time, I'm shocked to also feel like a cockroach. I'm still working on the making a living part but everyday I have to ask myself if it is wise to continue forward because I don't know if or when I will fined or arrested as I operate illegally as a resale shop who simply can not comply.

On top of the uncertainty and demonization for imagined wrongdoings I now am in a position of being silenced by fear of my own government. I can no longer speak out about this sad law. I can not absorb the risk of speaking of and becoming a target.

I would not have believed what our govt could do had I not seen this myself. And of course most disturbing of all is the complete disregard for human beings by our government when they randomly destroy our lives.

Anonymous said...

Yesterday's Anonymous poster may have a clue as to why there isn't more publicity on this issue. I hope you change your mind or get a friend to do the speaking for you!

As a mom without a business, I can talk to anyone about this law and I Do. We went to our local teaparty with CPSIA signs and several people asked us about what it was and they were shocked.

There is a real Catch-22 here. How can we raise awareness of consumers if businessmen/women don't talk to their clients? Being quiet won't make the problem go away and we can't all choose Rick to speak for us--even if he writes better than we do.


Anonymous said...

Anonymous again. I was very outspoken and drove a great deal of press coverage in my area and educated many local businesses and my customers. I drove people to call our congressman (who could care less) and built contacts with state senators (again who could care less, but do pretend a little).

I am in a little different situation. As a resale shop I am selling items that are illegal to sell based on this law. There simply is no way not to. For the record I am not selling anything that I believe to be harmful in any way to children. I would close my business in a heartbeat if I thought that.

It is one thing to speak out and be vilified. I took this chance previously. But now it is not about being personally vilified. It is about being fined or imprisoned.

I can not do that to my family. But to be honest I don't know what else I can do. I feel that I have exhausted my options.

Don't get me wrong, people are quite often sorry when they ask why I won't buy their shirt with rhinestones as I go on a 1/2 explanation:) I talk to anyone that will listen but no more TV, radio, newspapers for me.

And this is very unfortunate I agree. I am now off to work on figuring out how to do something about term limits!