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Jan 22 2016   3:02PM GMT

California, New York Put Forth Useless Phone Encryption Bills

Sharon Fisher Sharon Fisher Profile: Sharon Fisher


California and New York are each attempting to pass bills that they claim will help protect people against crime, but in reality would likely simply eliminate a source of sales tax revenue from the state: Each is putting forth a bill that would forbid smartphones with unbreakable encryption to be sold within their respective states, levying a fine of $2,500 on each infraction.

As you may recall, this all started in the fall of 2014, when Google and Apple each released smartphones with encryption that even the respective vendors couldn’t break. Much handwringing on the part of law enforcement ensued, warning us of dire consequences such as pedophilia, terrorism, and so on. After the furor died down a bit, it has come up again in light of recent terrorist attacks and the concern (likely incorrect, as it turned out) that terrorists were using encrypted smartphones.

Now, one of the handwringers, Manhattan District Attorney Cyrus Vance Jr., has encouraged 62 New York district attorneys to ask the New York Assembly to address the issue, because the federal government has failed to do so, writes Seung Lee in Newsweek.

Democratic Assemblyman Matthew Titone, of Staten Island, put forth such a bill last June, but because the Assembly didn’t address it then, he has re-introduced A8093 during this legislative session. The goal of the legislation is to encourage the federal government to act on the issue, a spokesman for the Assemblyman told Lee.

Interestingly, according to some reports, it’s retroactive to January 1 of this year, meaning that Apple and Google could theoretically be on the hook for fines for smartphones they’ve sold legally.

At the same time, California Assemblymember Jim Cooper (D-Elk Grove) put forth a similar bill, Assembly Bill 1681. It is specifically intended to help law enforcement investigate and prosecute suspected criminals and criminal organizations that are found to be involved in human trafficking and other serious crimes, writes Hannah Albarazi for CBS. (One difference – the California bill doesn’t take effect until January 1 of 2017.)

Keep in mind what these bills actually purport to do. They don’t keep people from using encrypted smartphones in New York and California. They simply specify that vendors can’t sell (or lease) those phones in New York and California. The implication is that we could soon expect encrypted smartphone stores, like fireworks stands, to pop up around the borders of whatever states enact such regulations.

“I never thought I’d see an Apple Store in Newark (or Hoboken), but legislation to ban sales of secure smartphones will do exactly that,” noted one Twitter commenter.

Also recall that case law on whether people can be forced to surrender their phone’s encryption key is not yet settled. It all depends on whether an encryption code is something that is the expression of one’s mind, like the combination to a safe, which is protected under your Fifth Amendment rights not to incriminate yourself, or a physical key, something you possess, which is something you can be forced to produce. Courts have been going back and forth on the issue.

Meanwhile, members of the technology community ranging from Apple CEO Tim Cook to security expert Bruce Schneier have pointed out that encryption back doors don’t just open for the government or law enforcement, and would weaken security for everyone. “You can’t build a backdoor that only the good guys can walk through,” Schneier wrote when Apple first announced its policy. “Encryption protects against cybercriminals, industrial competitors, the Chinese secret police and the FBI. You’re either vulnerable to eavesdropping by any of them, or you’re secure from eavesdropping from all of them.”

“There have been people who suggest we should have a backdoor,” Cook reportedly told 60 Minutes. “But the reality is, if you put a back door in, that back door is for everybody, for good guys and bad guys.”

Ironically, while all this is going on, National Security Agency (NSA) Director Adm. Michael Rogers was telling the Atlantic Council, an international affairs think tank, that encryption was here to stay and that attempts to legislate it, as in California and New York, were misguided. “Spending time arguing about ‘Hey, encryption is bad and we ought to do away with it,’ that’s a waste of time to me,” Rogers said, writes Cory Bennett in The Hill.

Of course, to the paranoid, that simply is confirmation that the NSA already knows how to read our encrypted smartphones.

5  Comments on this Post

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  • TheRealRaven
    "...meaning that Apple and Google could theoretically be on the hook for fines for smartphones they’ve sold legally."

    Given Article I, Section 10, paragraph 1, of the U.S. Constitution, what "theory" makes that possible?
    33,050 pointsBadges:
    Like most people, I would simply ignore the Ban, and get it out of state.  The Govt. needs to butt out on this issue.
    110 pointsBadges:
    By the way, there is a legal term that covers the retroactive nonsense: ex post facto: The  Constitution of the United States, art. 1, sec. 10, forbids the states to pass any ex post facto law; which hasbeen defined to be one which renders the act punishable in a manner in which it was not punishable when it was committed.6 Cranch, 138. This definition extends to laws passed after the act, and affecting a person by way of punishment of that act,either in his person or estate. 3 Dall. 386; 1 Blackf. Ind. R. 193 2 Pet. U. S. Rep. 413 1 Kent, Com. 408; Dane's Ab. Index,h.t. 
    110 pointsBadges:
  • Sharon Fisher
    Yes, if that date provision makes it to the final bill, it does seem like it'd get overturned in court.
    9,590 pointsBadges:
  • Kevin Beaver
    Thanks for writing this, Sharon. It needs to be known.

    The reality is that the big-government politicians - whom we somehow seem to believe is a good idea to keep in power - could not care less about reality. It's no different than what John Stossel recently covered about politicians ignoring basic economic principles:

    These ignorant politicians see what they want to see because they want to maintain their power and control.
    27,460 pointsBadges:

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