Two States Could Ban Unbreakable Smartphone Encryption

By Rafał Konieczny - Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=38272843

By Rafał Konieczny – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=38272843

Proposed laws in California and New York would ban phones with unbreakable encryption. California state representative Jim Cooper says the move is needed to prevent human trafficking.

The California bill was introduced this week and its introduction explains that it “would require a smartphone that is manufactured on or after January 1, 2017, and sold in California, to be capable of being decrypted and unlocked by its manufacturer or its operating system provider.”

Breaching the law would have a mandatory fine of $2,500 for each individual handset. The fine would be on the seller, though the idea is presumably that sellers would stop stocking and ordering handsets that didn’t meet the rules.

Cooper says the move wouldn’t affect any existing powers and limits affecting law enforcement officials accessing phones. He explained the motivation behind the bill to Arstechnica by saying “We’re going after human traffickers and people who are doing bad and evil things. Human trafficking trumps privacy, no ifs, ands, or buts about it.”

The Cooper bill follows the introduction last year of a similar bill in New York that is remarkably similar, right down to the $2,500 fine. That bill is currently at the committee stage in the New York assembly, so hasn’t yet passed any significant vote. In New York’s case the presented justification is also law enforcement with the bill’s introduction saying “Simply stated, passcode-protected devices render lawful court orders meaningless and encourage criminals to act with impunity.”

While only state measures, both bills would cause significant headaches for Apple and manufacturers of Android devices which have encryption measures that the manufacturers themselves cannot override. With California and New York making up 12 and 6 percent of the US population respectively, manufacturers would face the choice of losing a significant part of the domestic market, going to the expense and hassle of producing special edition handsets for those states, or simply redesigning the handsets completely on the next manufacturing run and dealing with the problem of existing stock in the states.

Even if either bill did pass into law, there’s some question over whether the measures would hold up in court. Arstechnica quotes two lawyers as saying such a law would breach the dormant Commerce Clause, a constitutional principle that restricts state legislation from unfairly restricting interstate commerce.




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