NY State Legislator Proposes Ban On Sale Of Encrypted Smartphones

from the never-too-late-to-give-a-bad-idea-another-shot dept

It appears someone's listening to local crackpot New York District Attorney Cyrus Vance's demands that encryption be outlawed to make law enforcement easier. His "white paper" didn't have the guts to make this demand, instead couching it in language stating he would be completely unopposed to a legislative ban on encryption, but that he wasn't going to be the bad guy asking for it.

A month later, as the mockery of his encryption white paper died down, Vance decided he would be the bad guy and openly stated that if Apple wasn't going to give him what he wanted, it could be forced to do so by the government. Lo and behold, New York Senator Assemblyman Matthew Titone has answered Vance's call for action. In what is likely the nation's first proposed ban on encryption, Titone's introduced bill forbids the sale of smartphones that can't be cracked by their manufacturers. (h/t Nate Cardozo)

ANY SMARTPHONE THAT IS MANUFACTURED ON OR AFTER JANUARY FIRST, TWO THOUSAND SIXTEEN, AND SOLD OR LEASED IN NEW YORK, SHALL BE CAPABLE OF BEING DECRYPTED AND UNLOCKED BY ITS MANUFACTURER OR ITS OPERATING SYSTEM PROVIDER.

THE SALE OR LEASE IN NEW YORK OF A SMARTPHONE MANUFACTURED ON OR AFTER JANUARY FIRST, TWO THOUSAND SIXTEEN THAT IS NOT CAPABLE OF BEING DECRYPTED AND UNLOCKED BY ITS MANUFACTURER OR ITS OPERATING SYSTEM PROVIDER SHALL SUBJECT THE SELLER OR LESSOR TO A CIVIL PENALTY OF TWO THOUSAND FIVE HUNDRED DOLLARS FOR EACH SMARTPHONE SOLD OR LEASED IF IT IS DEMONSTRATED THAT THE SELLER OR LESSOR OF THE SMARTPHONE KNEW AT THE TIME OF THE SALE OR LEASE THAT THE SMARTPHONE WAS NOT CAPABLE OF BEING DECRYPTED AND UNLOCKED BY ITS MANUFACTURER OR ITS OPERATING SYSTEM PROVIDER.
This isn't Titone's first attempt at this legislation, something that can be gleaned by the fact that the proposed legislation still contains wording suggesting January 1, 2016 is still somewhere off in the future. This bill made its debut last year, roughly nine months after Apple announced its plan to offer encryption by default.

The proposed legislation was introduced in the Committee on Consumer Affairs and Protection [wft?] on June 8th, 2015. Nothing happened then, but a new legislative session is upon us and Titone re-submitted his bill to the same committee last week.

There has been no fanfare accompanying this twice-submitted legislation, most likely due to it potentially toxic side effects. Even Titone's own Senate page -- where press releases seem to accompany all of his other sponsored bills -- has nothing to say about this one. Still, the bill has attracted two co-sponsors: Walter Mosley and Patricia Fahy.

Interestingly, or perhaps more accurately, infuriatingly, the bill would hold retailers responsible for manufacturers' actions. Apple Stores would apparently be unable to sell any smartphones and every service provider would have to eliminate any phones with default encryption from their lineups.

The wording isn't a ban on encryption, per se. But it does make the sale of encrypted phones illegal -- pretty much accomplishing the same thing without having to require backdoors or forbid manufacturers from offering default encryption in the other 49 states. That latter part is the loophole New York can't close, even if this stupid piece of legislation passes.

New York's sky-high tobacco taxes have turned New York City into a massive secondary market for cigarette cartons that fell off a truck/were purchased across state lines. This would basically do the same thing for smartphones, creating a market for phones purchased in other states but deployed in New York. The bill doesn't even attempt to address this loophole, laying pretty much all of the culpability at the feet of local resellers. Purchasers aren't forbidden from deploying their own encryption and secondhand phones containing built-in encryption can be bought and sold without fear of repercussion.

In all likelihood, Titone's bill will die another death on the cold hard assembly floor. The bill is bad in multiple ways, but not in any of the ways immediately appealing to undecided politicians. The spiel accompanying the bill attempts to press all of the right buttons ("There is no reason criminals should also benefit, and they will, as people will be defrauded or threatened, and terrorists will use these encrypted devices to plot their next attack over FaceTime..."), but informing the nation's largest phone manufacturers that their products can't be sold in New York isn't exactly the sort of message many legislators are willing to send

Filed Under: cyrus vance, encryption, going dark, matthew titone, mobile encryption, ny, patricia fahey, walter mosley
Companies: apple


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  1. identicon
    Personanongrata, 12 Jan 2016 @ 3:38pm

    Senator Know Nothing

    NY State Senator Proposes Ban On Sale Of Encrypted Smartphones

    Why stop at banning the sale of encrypted phones?

    What about criminals/terrorists (they're really one in the same) secretly planning their next moves behind the brick walls of their home/office?

    Perhaps New York Senator Matthew Titone will propose a law that forces all New York State builders to construct only glass houses/offices for New Yorker's to live/work in so the state may better monitor suspect persons for potential criminal activity.

    Or.

    What about criminals/terrorists who may be carrying a firearm or other weapon perhaps New York Senator Matthew Titone will propose a law that all garment wholesalers, men's haberdasheries and women's boutiques could only sell see through clothing to ensure no person were carrying a firearm in public?

    All joking aside New York Senator Matthew Titone proposal to ban the sale of encrypted phones in New York is in direct contravention of the New York State Constitution:

    ARTICLE I

    Bill Of Rights

    ยง12. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof. (New. Adopted by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938.)

    https://www.dos.ny.gov/info/constitution.htm

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