A bill pending in the California legislature would criminalize the mere possession something I'd never heard of before -- bags lined with aluminum foil. While I'd heard about various cities banning stores from distributing plastic bags and styrofoam cups, this is the first time I'd heard of criminalizing the possession of any type of bag.

To shoplifters and merchants, these foil-lined bags are known as "booster bags" -- because they defeat RFID technology by blocking radio transmission signals. As blogger tadhg.com sees it, laws against them criminalize intent:

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.

Thus, when 88-year-old Kathryn Johnson lay bleeding to death on the floor, the cops who had illegally broken into her house and shot her devoted their time to planting marijuana in her basement. (That's because marijuana requires no intent.)

In the hands of a creative prosecutor, these laws are wonderful, because the possession of the evil thing is thought of as inherently a byproduct of evil intent. Few sympathize with someone who possesses instrumentalities of crime, as the evil intent is just assumed. I worried earlier about my legal culpability for possessing sudafed within ten feet of my lithium batteries -- and sure enough I learned that the DEA could treat this as a crime if it wanted to (and possibly invoke the "Patriot Act"). Were I taller, larger, covered with tattoos, and a member of the right motorcycle gang, I don't doubt that they would too.

This is of course all paranoia. The law hasn't passed yet, and if I don't like the little RFIDs I can still wear my tinfoil hat to protect myself from them.

Hell, I can even wrap my fried chicken lunch in tinfoil and blatantly carry it in my pocket!

As long as the store isn't using one of these, I'll be safe!

MORE: Speaking of "creative" prosecutors, did you know that a camera can be considered a wiretapping device? I didn't either, but I share Glenn Reynolds's reaction to the prosecution of Brian Kelly for filming a police stop. It's an outrage.

Wiretapping? Yes. As Brendan Loy explains, the law in question prohibits "intercepting" oral communications. I share his assessment of the situation:

Remind me, what country do we live in again?

Frankly, this kind of thing scares me much more than a lot of the political civil-liberties debates that people get all exercised about. The idea that someone could face a potential seven-year prison sentence for... making a video and audio recording of himself being pulled over in a traffic stop... in America... is beyond terrifying.

I think there should be a right to film and record the police. All the more so considering that the police have the right to film and record you!.

Considering that the police are more and more doing things like entering onto property and shooting dogs, what other recourse do citizens have?