California Legislator Says Encryption 'Threatens Our Freedoms' Calls For Ban On Encrypted Cell Phones

from the something-about-defecating-vis-a-vis-eating-location dept

If all goes according to these legislators’ plans, Flyover Country will have something the coasts don’t: encrypted cell phones. Because there’s always room for one more bad idea, California assemblyman Jim Cooper is following up New York assemblyman Matthew Titone’s call for a ban on encrypted phones with one of his own.

California assembly member Jim Cooper (D-Elk Grove) introduced the legislation, bill 1681, that would require any smartphone manufactured “on or after January 1, 2017, and sold in California after that date” to be “capable of being decrypted and unlocked by its manufacturer or its operating system provider.”

Any smartphone that couldn’t be decrypted on demand would subject a seller to a $2,500 fine.

Cooper is either fearless or stupid, given that he’s dropping this legislation bomb deep in the heart of Tech Country. Odds are on the latter, though, as he’s tying his proposal to his crusade against human trafficking — something that generally means nothing more than increased persecution of sex workers with very little to show in terms of results. Preying on ignorance and fear never lost anyone any votes.

At a press conference today, Assemblymember Jim Cooper (D-Elk Grove), along with the Sacramento County District Attorney’s office, crime victim’s families, and bill supporters, announced the introduction of AB 1681. The bill will allow law enforcement to investigate and prosecute suspected criminals and criminal organizations that are involved in human trafficking and other serious crimes.

[…]

“Human traffickers are using encrypted cell phones to run and conceal their criminal activities,” said Assemblymember Cooper. “Full-disk encrypted operating systems provide criminals an invaluable tool to prey on women, children, and threaten our freedoms while making the legal process of judicial court orders, useless,” Cooper added.

You hear that, citizens? Encryption “threatens our freedoms,” which is a really weird way to rephrase limiting cell phone buyers’ choices and forcing them to select less secure options.

Of course, a prominent member of local law enforcement was on hand to offer support for the encrypted phone ban.

“I support an anti-encryption policy that will restore the ability to access cellphone data by a court ordered search warrant. If smartphones are beyond the reach of law enforcement, crimes will go unsolved, criminals will not be held accountable, victims will not receive justice and our ability to protect our children and community will be significantly compromised,” said Sacramento County District Attorney Anne Marie Schubert.

Yes, this heartwarming concern for “victims receiving justice” and “unsolved crimes” is the same heartwarming concern that led to a backlog of more than 1,500 rape kits in her jurisdiction, some dating back more than a decade — a backlog that only began to be cleared thanks to activism and legislation.

Cooper’s proposed legislation is basically a word-for-word copy of Titone’s.

A smartphone that is manufactured on or after January 1, 2017, and sold or leased in California, shall be capable of being decrypted and unlocked by its manufacturer or its operating system provider.

Customers will still be able to implement their own encryption to lock the government out of their phones and, of course, anyone can buy or lease an encrypted phone from an out-of-state retailer and use it in California without fear of reprisal.

Unlike Titone, who appears to be slipping this bill into each legislative session with as little noise as possible, Assemblyman Cooper as least has the courage of his convictions to not only craft this terrible legislation, but also announce its arrival with a press conference. Considering his bill is both anti-consumer and anti-constituent, that’s a pretty bold move. If you’re going to attack your voter base, the least you can do is be transparent about it.

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Comments on “California Legislator Says Encryption 'Threatens Our Freedoms' Calls For Ban On Encrypted Cell Phones”

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44 Comments
That One Guy (profile) says:

Incredibly sleazy, but potentially effective

Unlike Titone, who appears to be slipping this bill into each legislative session with as little noise as possible, Assemblyman Cooper as least has the courage of his convictions to not only craft this terrible legislation, but also announce its arrival with a press conference. Considering his bill is both anti-consumer and anti-constituent, that’s a pretty bold move.

It’s not bold, it’s deliberately calculated to give the bill as much protection against criticism as possible. By tying encryption to human trafficking, publicly, he’s trying to make it too politically risky for anyone to vote against it, as you can be sure that anyone objecting will quickly be slammed for ‘not caring about combating human trafficking’.

It’s a cheap PR stunt and political tactic, and hopefully one that backfires.

DannyB (profile) says:

Re: Use the sleaze in reverse

Let’s try making that work in reverse.

Tie LACK OF encryption to human trafficking. Then it becomes too politically risky for anyone to vote against encryption. You don’t want encryption why are you ‘not caring about combating human trafficking’ ?

Play the hyperbole in reverse. If encryption had been used in the right places, then Edward Snowden would never . . . um, . . . have been born.

You don’t want encryption and secure systems? Why are you in support of hackers creating a Cyber Pearl Harbor 9/11?

beltorak (profile) says:

Re: Re: Use the sleaze in reverse

that’s a nice theory, but the reason encryption is so easily tied to horrible things is because people naturally want to hide the horrible things they do from others (notably law enforcement), and encryption is the tool to use to hide details of communication. I’m having a hard time seeing how to tie the lack of encryption to any existing natural tendency in connection with people doing horrible things.

That One Guy (profile) says:

Re: Re: Re: Use the sleaze in reverse

Locks.

People put locks on their houses, companies put locks on their stores, not to hide nefarious activity, but to prevent people from entering.

Point out that as locks protect the privacy and contents of your house, so does encryption protect the privacy and contents of anything you keep on a phone/tablet/computer.

If they fire back with, ‘But you can search a house with a warrant, you should be able to do the same with a phone’, point out that that’s not what this is being aimed at, as while a warrant to search a house is delivered to those that live there, allowing them to know that it will be searched, the warrants to search phones are being handed to the companies that make and sell them, which means someone could have the contents of their phones browsed through without ever knowing about it.

As has been pointed out before, once in this very comment section, what they’re asking for is roughly the equivalent of requiring people keep the doors on their homes unlocked, just in case police want to pop in for a look.

nasch (profile) says:

Re: Re: Re:2 Use the sleaze in reverse

The interesting difference is that if a homeowner refuses to cooperate with a search warrant, the police can break the door down. With strong encryption that is not true, which is of course why they are seeking laws like this one. I think 5th amendment law really needs to be settled on whether suspects can be compelled to give up encryption passwords.

That One Guy (profile) says:

Re: Re: Re:3 Use the sleaze in reverse

So far it seems that the courts are split on the matter, with some holding (in my opinion correctly) that forced decryption can be considered forcing someone to provide the very evidence used against them, which violates the rule against self-incrimination, while others have treated the password and the content it unlocks as completely separate, which means the Fifth never kicks in.

While it would be nice if the Supreme Court made a ruling on the matter(even better if they actually got it right), at the same time it wouldn’t necessarily do anything about this situation, since the police/government are arguing that by going to the company, rather than the person, the fifth never applies, making it yet another case where they’re trying to have it both ways.

They can present a warrant to the company, forcing them to give up the same data that they would get it presented to the owner of the device, but by presenting it to the company, they don’t have to worry about forced decryption being seen as forced self-incrimination, and the evidence resulting from it inadmissible.

In fact in the recent case against Apple by the DOJ, they flat out admit it:

Even if Feng knew the passcode, attempting to compel him to unlock the Target Phone would not provide an adequate alternative to an order directed to Apple. Compelled decryption raises significant Fifth Amendment issues and creates risk that the fruits of the compelled decryption could be suppressed. See, e.g., In re Grand Jury Subp. Duces Tecum Dated March 25, 2011, 670 F.3d 1335, 1349 (11th Cir. 2012) (holding that the Fifth Amendment protects a defendant’s refusal to decrypt electronic storage media). The government should not be required to pursue a path for obtaining evidence that might lead to suppression.

The laws forcing companies to be able to decrypt devices goes well beyond making sure that as a warrant can allow entry into a home, it should also be able to allow ‘entry’ into a device, and into the realm of bypassing the Fifth Amendment entirely when it comes to the content on devices, while also handily forcing in mandatory encryption backdoors so the police and governments can continue to snoop around without trouble.

That One Guy (profile) says:

While we're at it...

“Human traffickers are using encrypted cell phones to run and conceal their criminal activities,”

Also used by human traffickers and other criminals to conceal criminal activities:

-Curtains.
-Not using cellphones at all.
-Talking in person.
-Walls.
-Code words/phrases.
-Any location not wired up for audio/visual recording, including the majority of homes.
-Any form of transit that allows one to travel without being tracked.

Come now, if encryption is used by criminals, and that’s reason enough to make it illegal, best get cracking on everything else criminals use to commit and/or hide their crimes. Sure it’ll do absolutely nothing to so much as cause a temporary blip in the crime(s) in question, while absolutely brutalizing the rights and safety of the public, but remember the motto of politicians everywhere:

“Better to be seen and accomplish nothing, than not be seen and actually get something done.”

Anonymous Anonymous Coward says:

Re: Re:

Political parties that control the political machine are major culprits. They have a firm handle on the money (AKA speech (unfortunately)) and can steer it to anyone that does not mess with the status quo.

Constituents have been indoctrinated into believing what the party chiefs spew as appropriate platforms, which in their individual efforts to garner as many of those constituents as possible have all moved to a middle position that is virtually indistinguishable from any other party.

Thus in a position of control where it is pointless to object to one parties position because it is hardly different than the others, and/or if one changes the other parties change too in such a way that they reverse their positions and we remain with two parties that have exactly the same platforms that are passed back and forth periodically in the name of good government, and third or more parties remain tactically meaningless.

bshock says:

a similarly modest proposal

Any shovel manufactured on or after January 1, 2017, and sold in California after that date should exclude blades made of any metal capable of cutting soil, loam, clay, sand, or other earth-like substance.

Murderers are using shovels with metal blades to dig unmarked graves that conceal their victims. Shovels provide criminals an invaluable tool to prey on women, children, and threaten our freedoms while making the legal process of judicial court orders, useless.

DannyB (profile) says:

It all depends on the meaning of "Our Freedoms"

Okay, I get it. A California Legislator says Encryption threatens Our Freedoms.

Yes, it does. If my data is encrypted, then you (eg, the government official) lose ‘your freedom’ to ravage through my personal papers, without a warrant, at will, for no stated purpose, fishing for anything useful.

Now if the California legislator were to say “Encryption threatens Your freedoms”, then I would laugh at him for his stupidity. With encryption, I still have my freedom from unreasonable search, and my freedom to peaceably assemble online, and my freedom to express my opinion to others. Without encryption, I very well may lose these in regimes that are openly becoming more repressive and less democratic with each passing day.

Anonymous Coward says:

“fearless or stupid”

They really are not mutually exclusive properties.

[…]

“Full-disk encrypted operating systems provide criminals an invaluable tool to prey on women, children, and threaten our freedoms while making the legal process of judicial court orders, useless,”

Without quibbling about the definition of a “full-disk encrypted operating system” – it doesn’t sound like he wants to stop at phones.

ECA (profile) says:

California assemblyman

I wonder about all the things happening in his Jurisdiction..
To worry so much about HUMAN TRAFFICKING..

This person is a deligate from ELK GROVE CALI..
Population in 2013: 161,007 (98% urban, 2% rural). Population change since 2000: +168.4%
located just south of the state capital of Sacramento. It is part of the Sacramento–Arden-Arcade–Roseville Metropolitan Statistical Area. As of the 2010 census, the population of the city is 153,015. The second-largest city in Sacramento County,

I think this person has MORE problems then HUMAN TRAFFICKING…
” backlog of more than 1,500 rape kits in her jurisdiction, some dating back more than a decade “

Chronno S. Trigger (profile) says:

“If smartphones are beyond the reach of law enforcement, crimes will go unsolved, criminals will not be held accountable, victims will not receive justice and our ability to protect our children and community will be significantly compromised,”

There’s your problem. Victims don’t receive justice, the accused receives justice. To insist otherwise is not justice, it’s vengeance. Once we get into vengeance territory, protecting the innocent goes out the window. It becomes about punishing the guilty no matter who else gets hurt along the way. “Casualties of war” as they will call it.

Paul Renault (profile) says:

I think the Legislator needs to talk to this guy...

http://www.nbcnews.com/tech/security/nsa-chief-mike-rogers-encryption-foundational-future-n501391
Mike Rogers: “Encryption is foundational to the future, so 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. “Encryption is foundational to the future, so what we’ve got to ask ourselves is, given that foundation, what’s the best way for us to deal with it?”

Talk available here:
https://www.youtube.com/watch?v=wnTGO6OFgCo

JustMe (profile) says:

OK, just gonna point this out to the DA and PoPo

“The bill will allow law enforcement to investigate and prosecute suspected criminals and criminal organizations that are involved in human trafficking and other serious crimes.”

You know that y’all can already do this, right? Those things are not legal and you can investigate and prosecute stuff that isn’t legal. Right? RIGHT? You don’t need new laws for that.

Jim Cooper says:

Re: OK, just gonna point this out to the DA and PoPo

You don’t get it. Human traffickers and other criminals require a smartphone to commit their crimes. Like a human trafficking/crime app or something. It is not possible to commit a crime without a smartphone, so we must make them all searchable and unprotected in order to find these criminals. There is absolutely no other method we have at our disposal to investigate and prosecute the criminals in our midst! Why must you always insist on protecting criminals from prosecution! foot stomp

DigDug says:

Mr. Jim Cooper - Wake the FRAK Up!

You sir are an imbecile, an idiot, a bumbling buffoon.
You don’t deserve your place in government, and do you know why?

You aren’t upholding the laws you swore to uphold.

Encryption is MANDATORY to PROTECT our RIGHTS against the unconstitutional and treasonous acts by our traitorous alphabet agencies, executive, judicial and legislative branches of the government.

The Constitutional Amendments were NOT changed by 9/11.
They cannot be changed by presidential whim or decree.
They cannot be changed by acts of Congress or by whim of brain-dead justices.
The ONLY way the amendments can be changed is through the continental congress which can only be called by the states and must be ratified by the states, not the bought and paid-for imbeciles sitting in Washington D.C. or anywhere else for that matter.

So, shut your stinking pie-hole, wake up, and smell what you’re shoveling.

If you want “US” to live without encryption, first make your life an open book – walk around, sleep, drink, shit and shave with a 360 degree camera covering every second of your life, every e-mail, text, phone conversation, public or private.

After you’ve done that for about 50 years, we might – just “MIGHT” – ah, who are we kidding, you wouldn’t allow that as you don’t want the world to know all of your dirty little secrets. Which we, the world, probably wouldn’t want to know anyway as we’d prefer to keep our last meals down.

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