Federal Bill Could Override State-Level Encryption Bans (thestack.com)

An anonymous reader writes: A new bill has been proposed in Congress today by Representatives Ted Lieu (D-Calif.) and Blake Farenthold (R-Tex.) which looks to put a stop to any pending state-level legislation that could result in misguided encryption measures. The Ensuring National Constitutional Rights of Your Private Telecommunications Act of 2016 comes as a response to state-level encryption bills which have already been proposed in New York state and California. These near-identical proposals argued in favour of banning the sale of smartphones sold in the U.S. that feature strong encryption and cannot be accessed by the manufacturer. If these bills are passed, current smartphones, including iPhone and Android models, would need to be significantly redesigned for sale in these two states. Now Lieu and Farenthold are making moves to prevent the passing of the bills because of their potential impact on trade [PDF] and the competitiveness of American firms.

Comments

Congress is just mad someone is beating them

[hsmith]

To the punch of stripping Americans of their right to encrypt their data.

Re:Congress is just mad someone is beating them

[Anonymous Coward]

No they aren't. The cell phone makers don't want to have to bear the expense of making a California or New York edition phone so they have lobbied their congress critters to that effect.

Re:Congress is just mad someone is beating them

[Anonymous Coward]

This is what lobbying efforts in your favor feel like. Enjoy it while you can. It's rare.

Re: Congress is just mad someone is beating them

[I'm New Around Here]

The right to be secure in your person and papers is certainly Constitutionally protected.

Illegal phone running

[Nukenbar]

I just love the idea that we are going to create a whole new "War on encryption" that might be even less winnable than the War on Drugs.

Instead of people running guns from less restrictive jurisdictions, we will now all be criminals importing phones because we want to buy phones win normal industry standard encryption.

Re:Illegal phone running

[gstoddart]

This is far more than a war on encryption.

This is a war on your ability to have secrets from the government they're not allowed to access by going to a third party -- and that's before they even start claiming they don't need a warrant for this shit, which increasingly is exactly what the do.

How this isn't a violation of both 4th and 5th amendment rights is baffling, but apparently digital invalidated those.

If you have nothing to hide, you have nothing to fear, comrade.

Re:Illegal phone running

[Solandri]

I actually miss the Cold War. At least back then, our politicians would bend over backwards to avoid doing stuff like this, so they could highlight how we were different from and better than those authoritarian Commies.

Re:Illegal phone running

[vux984]

This is a war on your ability to have secrets from the government they're not allowed to access by going to a third party

Its not "a third party" its "any party at all".

Other than the contents of one's own mind, we've never actually had that ability until recently.

The very best you could do was put your one time pad in a safe which they could open with a warrant and several hours with a drill.

Digital didn't take away your ability, it actually for the first time, gave us something new... places to put secrets that COULDN'T be easily broken into by law enforcement. This is new for them.

Of course the idiots out there are proposing nonsense like backdoors, or banning encryption etc which are never going to end well if they came to pass. But the adults in the room should be able to have a real conversation about it. Do we treat the contents of securely encrypted systems as an extension of the mind, and vastly increase the total amount of data that is effectively untouchable to law enforcement short of coercion/torture (which is itself illegal).

And on the flip side, what happens if they develop a method of pulling secrets directly from your mind that isn't invasive/destructive. Will that suddenly create a situation where they can get a warrant for the contents of your mind? The 5th amendment is a pragmatic one, you have the right not to testify because they can't make you talk short of torture... but what if they could simply read your mind remotely? And pluck your passwords out. Sci-fi / fantasy? Maybe. Maybe not.

Another possible future is the augmentation of the mind itself directly... imagine an SSD for the brain, *IN THE BRAIN*. What would the legal status of that be in terms of warrant access?

Re:Illegal phone running

[Phreakiture]

I'm not sure I agree with you. If you think about it, McCarthy was an authoritarian douchenozzle as bad as any caricature of a commie that could be come up with, and he was doing what he did in the name of fighting communism.

No, I think the best way to diff the cold war versus now is with this regex: s/communist/terrorist/g . The players who are doing this shit now would have been the ones doing that shit then if they were born a generation earlier.

History repeats itself over and over. Here's an example: Think Freedom Fries are a new idea? Look up Victory Sausage.

Overturn States' Rights?

[PPH]

So, when will a California resident be able to purchase a non CARB compliant motor vehicle?

Re:Overturn States' Rights?

[PinkyGigglebrain]

Probably sometime just after Hell freezes over. Once a regulation is in place it tends to stay.

I will however point out that the CARB regulations have done a lot to improve and maintain the air quality over the years. The air in LA would look like what they have in Beijing now if it wasn't for those regulations. That said I do have issues with the CARB regulations myself, I have a 35 year old car that I could upgrade its fuel and intake system to something more efficient and cleaner but none of the new equipment has been certified by CARB yet so I can't install it. If the regulations just required the car to pass emissions testing but not restrict the technology the car could use more older cars might get upgraded and the air would be cleaner for it.

But if it is a choice between a car I rarely use (I have a newer car for my commuting) and being able to breath I'll take the latter

Re:Overturn States' Rights?

[njnnja]

Unlike the right to be secure in your effects, there is no constitutional right to buy a car with any particular characteristic, including a high level of emissions. Therefore the Feds have an important say in the encryption debate, but in car emissions, much less so.

Since the answer about CARB compliance isn't found in the bill of rights, it is just up to legislators to decide how they want to run their states. And from a practical standpoint, one can argue that non-CARB compliant cars cause bigger problems in large and dense cities. As a result, states with large and dense cities might conclude that the difficulties of making and distributing different versions of cars are more than offset by the benefits of lower emissions, while states without big cities (or lots of car manufacturers) might balance the scale in the other direction and allow higher emissions.

But even though you made a bad analogy, at least you made a *car* analogy and for that you should be commended.

Re:Overturn States' Rights?

[sls1j]

When you convince the legislatures that those CARBs have gluten in them, of course.

Re: Overturn States' Rights?

[spitzak]

I think he is saying the car is exempted, but he is not allowed to modify it, even if his modifications would make it less polluting.

Re:Overturn States' Rights?

[msauve]

"here is no constitutional right to buy a car with any particular characteristic,"

You seem confused. The US Constitution doesn't grant rights (although it does list some specific ones, just for good measure), it grants powers to government. Where a power is not specifically given, it is left with the states or the people. The right to free speech exists because the government is given no power to regulate speech, not because it's listed in the Bill of Rights. That's only there to reinforce that fact.

The federal government is given the power to regulate interstate commerce, which it uses to regulate emissions on vehicles sold in interstate commerce. They could, if they wanted to, prevents states from enforcing stricter standards since those interfere with interstate commerce.

"the Feds have an important say in the encryption debate, but in car emissions, much less so."

Huh? Exactly what power allows the Feds to regulate encryption, per se, more than car emissions? It could be argued that they might regulate it with regard to products sold in interstate commerce. But, encryption is used for speech, a right of the people, and one which is specifically enumerated, so there's a pretty strong argument they can't do that. In the case at hand, they're talking about preventing states from interfering with interstate commerce by preventing states from requiring insecure encryption. That doesn't interfere with speech rights at all.

Re:Overturn States' Rights?

[Just Some Guy]

So, when will a California resident be able to purchase a non CARB compliant motor vehicle?

Hopefully, approximately the same time it becomes OK for me to crap on your lawn. Your encrypted messages to your wife don't harm me or the state. Your high-pollution vehicles make it harder for me to breathe.

Re:Overturn States' Rights?

[PPH]

Since the answer about CARB compliance isn't found in the bill of rights,

Better than the Bill of Rights, it's in the Constitution itself. Article IV, Section 2: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

If I can purchase, possess and operate a non CARB compliant vehicle in any one state, California cannot prevent me from doing so there. As that applies to phones, I could just hop over to Nevada or New Jersey), purchase a phone with uncrippled encryption and bring it home.

Re:Overturn States' Rights?

[PPH]

it's economic pull

Enjoy teaching your kids out of Texas Board of Education approved textbooks.

You'd think we settled this in the 90's

[alispguru]

Encryption source code is First-Amendment-protected speech.

(See the Criminal Investigation section)

Don't these legislators (or anyone on their staffs) know anything about what they're attempting to restrict?