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Encryption Communications Government Privacy United States Your Rights Online

Federal Bill Could Override State-Level Encryption Bans (thestack.com) 140

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.
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Federal Bill Could Override State-Level Encryption Bans

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  • by hsmith ( 818216 ) on Wednesday February 10, 2016 @11:24AM (#51478805)
    To the punch of stripping Americans of their right to encrypt their data.
    • Re: (Score:3, Insightful)

      by 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: (Score:3, Insightful)

        by Anonymous Coward

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

        • by mysidia ( 191772 )

          This can easily turn against us with 1 amendment to the bill tagging on an extra requirement such as sharing of encryption keys with the feds.

          • This can easily turn against us with 1 amendment to the bill tagging on an extra requirement such as sharing of encryption keys with the feds.

            Exactly, did we not learn anything with 'guided encryption' standards with RSA's not so random number generator? If they are so worried about 'da torrorists', perhaps the gubbermint should stop picking fights and arming them.

            • "If they are so worried about 'da torrorists', perhaps the gubbermint should stop picking fights and arming them." Of maybe they should remember they are supposed to work for us, the citizens and uphold the Constitution. Maybe then Americans wouldn't consider the government the enemy...
              • "If they are so worried about 'da torrorists', perhaps the gubbermint should stop picking fights and arming them."

                Of maybe they should remember they are supposed to work for us, the citizens and uphold the Constitution. Maybe then Americans wouldn't consider the government the enemy...

                Yes, but that is a complicated problem in the US that was solidified in 1864 when the District of Columbia became property of a corporation filed in the Queen of England's name and interest in wellbeing of the United States became non domestic. What is worse is they have played that game into a 20 trillion dollar debt based on playing the paper after running off with the gold and entertaining us all with puppets. The interesting part of that is England is in itself a proxy and well known for the commissio

          • Unfortunatly from my reading of some of the available material on this it appears that the feds are saying states can't do it but they could. I haven't found the actual bill yet so I don't know what it actually says but this seems to be the case. I just assume the worst and it will likely only be somewhat worse than that when it comes to the US government proposing something.
            • I haven't found the actual bill yet so I don't know what it actually says but this seems to be the case.

              The bill is literally linked in the summary. I'll link it again here: https://assets.documentcloud.o... [documentcloud.org]

              It's a page and a half of actual content, even with the narrow columns and oversized font they use for whatever reason.

              • Unfortunately both are blocked by the stupid proxy here at my work as I did try both links. I guess that is my punishment for not following /. protocol and attempting to RTFA.
            • by q4Fry ( 1322209 )

              It is now HR 4528 [congress.gov]

        • by Jawnn ( 445279 )

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

          Nonsense. The 1% always knows what's best for the rest of us, even if we don't. Why else would we keep electing representatives who are so deeply in the 1%'s pocket?
          Oh. Wait...

      • Do the TSA and DHS want the job of stopping and searching all people travelling between encryption-friendly and encryption-hostile state?

        Sorry, bigger budgets, and more potential to strip-search, grope and fine people. Of course they're going to go for it.

    • More likely Google and Apple (and Samsung, etc) dumped money into their congress critters to get this to avoid having to produce different phones/OSs for each state...

      The government doesn't need nor should they have Backdoors and bans on encryption. Citizens have more rights than the government, and they need to learn that, even if it's the hard way

      • More likely Google and Apple (and Samsung, etc) dumped money into their congress critters to get this to avoid having to produce different phones/OSs for each state...

        The government doesn't need nor should they have Backdoors and bans on encryption. Citizens have more rights than the government, and they need to learn that, even if it's the hard way

        Actually, the Government has ZERO Rights. The Government has only POWERS. Citizens, OTOH, have both Rights AND Powers.

        ALWAYS keep that in mind.

        • by rtb61 ( 674572 )

          Why bother with all the cost and hassle of fighting off silly local state laws. Just supply the phone without the software and provide an international link to download and install the software like, hmm, I don't know perhaps a link to https://play.google.com/store [google.com]. All you have to do is ensure the store and it's infrastructure is not in that location. Quite simply it makes far more sense to deliver phones in that condition, absolute minimum of software in the package, so that it complies with that locatio

  • by Nukenbar ( 215420 ) on Wednesday February 10, 2016 @11:31AM (#51478859)

    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.

    • by gstoddart ( 321705 ) on Wednesday February 10, 2016 @11:42AM (#51478933) Homepage

      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.

      • 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.
        • Which is why they worked so hard to end it. Now they can have free reign again.
        • 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

      • by vux984 ( 928602 ) on Wednesday February 10, 2016 @12:48PM (#51479487)

        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?

      • Outlawing encryption may mean average citizens won't have it, but it'll be the beginning of an enormous arms race between govts and citizens. The War on Encryption, yes, will make the War on Drugs seem easy in comparison.

        One factor at work is that justices obviously aren't going to bother to learn about anything that wasn't around when they started law school, so it's going to take quite a few years to fix that.

    • It is actually more (and older) than that. It is a war over who owns the device. This is a continuance of the war over who controls the operating system of the devices. Even in the current state, they can ship me the device in whatever state THEY want it in (they being either the gub'ment or the carrier or the device manufacturer) but the shit is still mine. Stop trying to control what I put on my own fucking devices. This is absolutely the wrong battle that is being fought. Separate the damn code from hard

  • by PPH ( 736903 ) on Wednesday February 10, 2016 @11:35AM (#51478883)

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

    • When it hurts the motor companies wallets enough that they bribe, I mean donate money to, congressman that will pass a bill allowing them to be sold their.
    • 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
    • by njnnja ( 2833511 )

      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 prob

      • by msauve ( 701917 )
        "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 f
        • "Exactly what power allows the Feds to regulate encryption, per se, more than car emissions? "

          The 2nd and 4th Amendments, each in combination with the 14th Amendment.

        • by Jawnn ( 445279 )

          "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?

          That whole privacy thing. You know, Constitutionally protected right, and all?

          • by msauve ( 701917 )
            "That whole privacy thing" gives the feds the right to regulate encryption?

            You'll need to provide some logic to support that claim.
      • by PPH ( 736903 )

        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.

        • by djinn6 ( 1868030 )
          The Supreme Court interprets the Privileges and Immunities Clause as states being forbidden from discriminating against citizens of other states. Assuming no federal laws prohibit it, California can ban the use of phones with non-backdoored encryption in the state, so long as the law applies to Californians just as much as it applies to visiting Texans.
    • by sls1j ( 580823 ) on Wednesday February 10, 2016 @12:31PM (#51479319) Homepage
      When you convince the legislatures that those CARBs have gluten in them, of course.
    • They can buy it when it no longer spews poison into the air that we all have to breathe. I don't believe encryption has that problem.

    • 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.

  • by Anonymous Coward

    But States' Rights!

    Screamed the Libertarians. Oh wait, they like this, never mind.

    • by moeinvt ( 851793 )

      States don't have "Rights" they have "powers".

      I don't like anything that comes out of Washington DC. You can be sure that the content of the bill serves the best interests of the corporations, even if there are some unintended consequences which end up benefiting the average person.

  • Given the naming trend for Congressional bills I'd have much more confidence if it was called the "Protect NSA Digital Rights & FBI Access Requirements" or something similar.
  • by Anonymous Coward

    Ensuring
    National
    Constitutional
    Rights of
    Your
    Private
    Telecommunications

    Do they have staffers who work on this sort of naming stuff?

  • by alispguru ( 72689 ) <{moc.tsg} {ta} {enab}> on Wednesday February 10, 2016 @12:12PM (#51479151) Journal

    Encryption source code is First-Amendment-protected speech [wikipedia.org].

    (See the Criminal Investigation section)

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

    • You seem to think they care about such things.

      I remain convinced that law-makers, or law-enforcement are particularly concerned with Constitutionality these days.

      Powers that started as "yarg, terrorists" are now for basic law enforcement, and increasingly the push to say you have no such rights is what we're seeing.

      Governments are increasingly deciding any hindrance to law enforcement, including such pesky things as the law and your rights, are unacceptable.

      And people are saying "well, as long as you're kee

    • There are all kinds of holes in your argument, unfortunately. The Supreme Court could hear a new case testing this and completely invalidate the previous ruling or issue a new ruling that partially invalidates it under certain circumstances. It could be legally ruled that while the source code itself has 1st amendment protection, the actual using of the code does not. And if you don't think that's possible, you definitely don't pay a lot of attention to the US legal system where literally anything can ha

  • Maybe the tech companies are even more central to this than it looks. Obviously, they would be behind a federal bill to protect themselves from having to fork products, even if it wasn't the right thing to do.

    But there's just TONS of stories about how poor law enforcement is constantly unable to break into phones. There's no stories about this on PCs, even though that's where huge amount of the data are, and have been for many years.

    The difference? PC and its competitors have always been open platforms.

  • Wouldn't any actual criminals just add 3rd party software to do strong encryption? These bills just create a market for one-time pad encryption support.
  • Just ship the China version of cellphones to the US. Problem solved.

  • Assuming you have Android, all you would have to do is root your own device and put the strong encryption packages on it. Or build them from source. Politicians are notoriously moronic.

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