United States Reps. Ted Lieu, D-Calif., and Blake Farenthold, R-Texas, last week introduced legislation to prevent states from passing laws banning the sale of smartphones with encryption capabilities.
The “ENCRYPT Act of 2016,” as the bill is known, provides that a state or political subdivision of a state may not mandate or request that a manufacturer, developer, seller or provider of covered products either design a security backdoor or modify existing security functions to allow the surveillance of their users or allow their physical search “by any agency or instrumentality of a state, a political subdivision of a state or the United States.”
The bill prohibits the use of products or services from manufacturers, developers, sellers or providers to decrypt or otherwise render intelligible information that has been encrypted or otherwise rendered unintelligible.
Covered products and services include computer hardware, software, electronic devices, and online services available to the general public.
In short, the bill aims to shut off attempts by the FBI, NSA and law enforcement agencies in the U.S. to force high-tech companies to include security or encryption backdoors or otherwise provide access to information on devices.
Rationale for the Act
“I was concerned when I saw the New York State legislator’s bill that would mandate encryption backdoors, and got more concerned when the California state legislature introduced a similar bill,” Lieu told TechNewsWorld. “California is a Democratic state, and if a Democratic legislator introduces the bill, I figure it will pass.”
The FBI, the NSA and other law enforcement agencies have been pressing for encryption backdoors.
FBI Director James Comey went so far as to suggest Congress might have to intervene if Apple and Google refused to remove default encryption from iOS and Android, but some lawmakers gave that suggestion a chilly reception.
A Weather Eye
“You can’t design a smartphone that would work in different states differently in terms of encryption, because people travel in different states all the time,” Lieu pointed out.
The issue is not about encryption, per se, he said. “Whether you believe in encryption backdoors or oppose them, you can still support the [ENCRYPT 2016] bill, because states shouldn’t get into interstate commerce.”
The bill “introduces people to the issue,” observed Daniel Castro, a vice president at the Information Technology & Innovation Foundation, and “in some ways, it educates policy makers on the issue.”
It also “sends a signal to the states that Congress is keeping an eye on things, and maybe they’ll give the issue some serious consideration,” Castro told.
“We need a national policy on this,” he remarked. “It’s not just about screwing up encryption but about how we can do national security really well.”