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.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 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.
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
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: cyrus vance, encryption, going dark, matthew titone, mobile encryption, ny, patricia fahey, walter mosley
Companies: apple
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in chronology ]
You say that as if it's a bad thing...
[ link to this | view in chronology ]
Easy
Apple could now commence selling smartphone kits.
The user then becomes the manufacturer and so is thus only one who must be able to decrypt it.
[ link to this | view in chronology ]
Re: Easy
I just noticed something: this means that the iPhone 6S line can be encrypted by default, as long as they only sell phones in NY that were manufactured before January. The iPhone 7 will have other issues -- Apple might finally get their wish and be allowed to exclusively sell the iPhone 7 online from out of state and have the local carrier simply activate it :)
[ link to this | view in chronology ]
Re: Easy
Apple could now commence selling smartphone kits.
The user then becomes the manufacturer and so is thus only one who must be able to decrypt it.
What the hell does it mean to "decrypt and unlock" a cellphone? What if I can install a 3rd party app that securely encrypts my data. Is that phone still illegal? If so, then isn't ANY cell phone illegal to sell?
If not, then what if Apple (or anyone else) sells a cell phone with a minimal OS that includes no encryption at all, and, after the purchase is complete, offers a downloadable upgrade that installs a highly robust encryption feature? For that matter, they could provide a service to upgrade the phone at the Apple store as soon as the cash register ring echo dies away.
[ link to this | view in chronology ]
Re: Re: Easy
[ link to this | view in chronology ]
correction to your headline/story
And btw, they're all Democrats.
[ link to this | view in chronology ]
Re: correction to your headline/story
Both are pro police state. The difference is that the Dems just already know they can lie like scum and not lose votes for it as much as GOP would. The fact the Hillary can attract votes despite being one of the most evil women to walk the earth makes it clear.
[ link to this | view in chronology ]
Re: Re: correction to your headline/story
[ link to this | view in chronology ]
Re: correction to your headline/story
[ link to this | view in chronology ]
FTFY:
Matthew Titone and the two -co-conspirators- are all members of the NYS *Assembly,* not the Senate.
And btw, they're all -Sell-out treasonous scum that out to get the chair.-
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
But they're trying to *stop* the sale of iphones.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Easily done
[ link to this | view in chronology ]
Provice the user with encryption software
[ link to this | view in chronology ]
Tablet
Does his family by any chance own a chain of Pawn Shops?
[ link to this | view in chronology ]
Re: Tablet
[ link to this | view in chronology ]
Apple's new feature
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
Remember: we get the kind and quality of government we elect.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Solution
[ link to this | view in chronology ]
Senator Know Nothing
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
§12. 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
[ link to this | view in chronology ]
Re: Senator Know Nothing
[ link to this | view in chronology ]
But seriously, one word: scope. Why the fuck does a shitty smelling, overrated city of narcissists like New York get to decide tech policy for the rest of us? Did you run out of hippies and black kids to frisk? You're just a tiny speck on the map, so put it back in your pants.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
There's also this: That's AND anonymizing technology. So this bill is about encryption, but he also seems to be creeping towards banning privacy in general and not just those bits that use encryption (although that's most of em). Of course, only terrorists & filthy pirates need to hide their location.
I assume his next bill will involve recording & upload of all voice content to a cloud-based escrow service for potential later use. I suppose the government really should have access to all content, as long as proper warrants are issued: not just encrypted content, but all 'temporally obfuscated' content that's been stashed away in what terrorists call 'the past'.
[ link to this | view in chronology ]
Others have noted...
I'm not sure Bernie Madoff would be considered a terrorist but it is estimated his "clients" lost ~$18 billion over many years starting in 1970. His activities were in the open and the financial regulators didn't find out until ~2008. If someone can hide their nefarious activities in one of the most highly regulated industries in the world, why can't violent terrorists do the same despite the intense surveillance by all these three letter agencies?
Looking at everything isn't going to work. Perhaps an implication of the quotation above from the NY state constitution and the US Constitution about probable cause and the sanctity of personal documents suggests a very narrow, focused search for the bad guys. It might even require spies infiltrating organizations before getting proper search warrants. It might even cost less than what's being done now.
[ link to this | view in chronology ]
They believe only the few should have rights and everyone else should not have those same rights they want for themselves.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
The wording should say what it really means
[ link to this | view in chronology ]
Apple has a whle planet to sell to
How would this affect the financial institutions based in NY?
Would they leave for another state that allowed encryption
How are these people in office proposing laws on something they don't fully comprehend
[ link to this | view in chronology ]
Can I be a politician now?
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
(Also, do they really think that international terrorists are going to solely use phones sold in New York?)
[ link to this | view in chronology ]
[ link to this | view in chronology ]