New Congress Bill Aims to Stop State-Level Bans on Encrypted Smartphones

A lock icon, signifying an encrypted Internet connection, is seen on an Internet Explorer browser in a photo illustration. REUTERS/Mal Langsdon

In response to two separate state bills aimed to ban the sale of encrypted smartphones, a California congressman introduced a bill that will allow the federal government to trump any state-led initiatives on encryption.

Democratic Representative Ted Lieu of California authored the Ensuring National Constitutional Rights for Your Private Telecommunications Act of 2016 (ENCRYPT) in hopes of stopping a recent trend of state assemblymen taking the national issue of encryption into their own hands. The three-page bill simply outlines that states cannot mandate smartphone manufacturers, developers or sellers to alter the security features or decrypt their own phones.

California assemblyman Jim Cooper and New York assemblyman Matthew Titone have proposed bills asking smartphone companies like Apple to decrypt their phones or be banned from selling within their respective states. Although the bills have little chance of actually being turned into law, they did expose the possibility of a fractured legal demands for manufacturers consumer electronics in different states.

"I got very concerned by these bills," says Lieu to Newsweek. "It is an infeasible system to force Apple and Google to make one smartphone for California and New York and another one for Minnesota and Texas."

Lieu says the Interstate Commerce clause in the Constitution provides the backbone of this bill, arguing states have no business in regulating smartphones that are used across all 50 states.

He believes Cooper and Titone acted upon pressure from local law enforcement agencies frustrated by the current gridlock in Washington.

Lieu also believes the ENCRYPT Act will pass easily, pointing to the bipartisan support behind the bill. Two congressmen from the Democratic and Republican parties each sponsored the bill. "Whether or not we agree on encryption itself, we all can agree states can't make up legislations on encryption."

Despite the FBI pressuring Apple and other Silicon Valley firms to create a back-door access for encrypted messages, Congress has been slow to take legislative action on encryption. Another congressman from California, Senator Dianne Feinstein, has pledged to bring an encryption bill to the Senate floor this year that would require companies to decrypt data under court order. Other senators are working on creating an encryption commission to figure out a compromise between law enforcement and tech companies.

But both Congress and encryption experts agree individual state laws are an inefficient way to handle the issue.

"These are just bad ideas," says Electronic Frontier Foundation attorney Andrew Crocker. "There isn't a lot of evidence for these states that will help accomplish their goals."