Congressional Reps Submit Bill Banning Encryption Bans

from the [placard]-BAN-THE-BAN-[/end-placard] dept

Wed, Feb 10th 2016 11:46am — Tim Cushing

Legislators in two states have proposed (largely unworkable) bans on the sale of encrypted phones, citing (of course) concerns about all the criminals who might get away with something if law enforcement can't have near immediate access to the entire contents of their phones.

In reaction to these stupid bills, national legislators have stepped up to offer their own counterpunch: a nationwide ban on encryption bans. The Daily Dot's Kevin Collier has the details.

Congressmen Ted Lieu (D-Calif.) and Blake Farenthold (R-Texas) have introduced what they call the Ensuring National Constitutional Rights of Your Private Telecommunications (ENCRYPT) Act of 2016. It’s an attempt, Lieu and Farenthold wrote in a letter to their colleagues, to address “[c]oncerns over the privacy, security and technological feasibility of a ‘backdoor’ into encrypted devices for the government and law enforcement” by making encryption a federal issue and keeping individual states from trying to ban it.

Update: We've been informed that it's not just Lieu and Farenthold, but also Reps. Suzan Delbene and Mike Bishop. Not only would such bans/backdoors make device usage less safe for users, but the lack of unified stance on phone encryption would turn phone sales in the US into a logistical nightmare, to the detriment of all involved.

“We are deeply concerned,” Lieu told the Daily Dot in a phone interview, “that a patchwork system with different encryption requirements in every state would not only undermine national security—it would also threaten the competitiveness of American companies and dampen innovation.”

Lieu, as one of the few representatives with a background in computer science, is also one of the few who has been bold enough to refer to FBI director James Comey's ongoing anti-encryption efforts as "stupid."

Whether this will go anywhere remains to be seen. It would appear few legislators are willing -- at least as this point -- to tell the FBI to stop asking for backdoors or bans. Alarmingly, despite the ongoing discussion bringing more evidence to the surface that such actions are not only bad ideas, but pretty much impossible to implement without doing away with encryption entirely, it seems like more legislators are moving towards the FBI's line of thinking.

Unfortunately, that is often the nature of the political business, where fear nearly always trumps rational thinking. For too many, it's perfectly acceptable that thousands of phone users be left open to attacks than one criminal suspect go free.

LIEU-027-Xml-ENCRYPT-Act-of-2016 (PDF)LIEU-027-Xml-ENCRYPT-Act-of-2016 (Text)

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Filed Under: blake farenthold, encrypt act, encryption, encryption bans, going dark, ted lieu

25 Comments

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TruthHurts, 10 Feb 2016 @ 12:05pm

Halfway there...
Now all we need is a constitutional amendment banning backdoors to encryption technologies.
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Anonymous Coward, 10 Feb 2016 @ 12:21pm

Surely this common sense approach to creating a bill must be nipped in the bud.
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Anonymous Coward, 10 Feb 2016 @ 12:27pm

I'd rather it be left up to the states. Not sure how the authority of a federal ban would be justified.
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Anonymous Coward, 10 Feb 2016 @ 12:27pm

Re: Halfway there...
Why? So they can ignore even more of the constitution?
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mcinsand@gmail.com, 10 Feb 2016 @ 12:27pm

I have an idea
>>Now all we need is a constitutional amendment banning
>>backdoors to encryption technologies.

Yeah, we could put it into a catch-all amendment that would cover something like, oh, maybe 'unreasonable search and seizure?' Then, any time a new means of legitimate communication or exchange protection would be protected, even though the determined could twist any such unanticipated means to illegitimate purposes. Maybe we could call it something like The Fourth Amendment.
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Anonymous Coward, 10 Feb 2016 @ 12:43pm

Re:
>I'd rather it be left up to the states. Not sure how the authority of a federal ban would be justified.

Because this is the poster child for the "interstate commerce" clause in the constitution. That is because, as you may be surprised to discover, very few states that have their own mobile phone manufacturing industries.
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Anonymous Coward, 10 Feb 2016 @ 1:08pm

Re: Halfway there...
> Now all we need is a constitutional amendment banning backdoors to encryption technologies.

While I appreciate the sentiment, you would need the wording to be a lot broader than that, and more general.

Of course, there's always the problem of proving that feature X is NOT a backdoor. And what would happen if a backdoor was discovered after the fact?
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Anonymous Coward, 10 Feb 2016 @ 1:16pm

Re: Re:
Because this is the poster child for the "interstate commerce" clause in the constitution. That is because, as you may be surprised to discover, very few states that have their own mobile phone manufacturing industries.

I would say that regulating them merely because the phones themselves might be manufactured in one state and shipped to another would be a stretch of the interstate commerce powers. I mean, that applies to just about every product.

But, more importantly, states don't have their own telephone system not connected to the rest of the country. Mobile phones are by their very nature interstate. And if a state makes one side of the communication insecure, it makes the entire communication insecure, including for the person in the other state. So federal regulations are justified in my opinion.
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One Nemesis (profile), 10 Feb 2016 @ 1:18pm

Encryption Ban (or not)
I wonder what the Congress Persons (must be PC here), state legislators, executive office people (from POTUS and Govs on down) to SCOTUS and state courts on down, would say when they find their cell phones, computers etc. have been broken into because of a "BACKDOOR". In reality, this BACKDOOR should be called an OPENDOOR!

Just look how fast many encryption schemes have been opened with or without an opendoor.
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Anonymous Coward, 10 Feb 2016 @ 1:25pm

Re: Re: Halfway there...
Be careful on the wording, too. We don't want to ban backdoors - we want to ban the government mandating that phone companies MUST have backdoors. There are cases where back doors can be useful.
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Anonymous Coward, 10 Feb 2016 @ 1:26pm

Re:
the 4th already bans backdoors imposed by law.

just because your personal information is transported by electron instead of paper means nothing.

And since the states must follow the constitution this problem is technically already settled. Well for the people that can comprehend English that is.
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Anonymous Coward, 10 Feb 2016 @ 1:39pm

Re: Re: Re:
Full disk encryption has nothing at all to do with any communication network. This is about encrypting data at rest, not in transit. It applies to all computers, not communications devices.
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Anonymous Coward, 10 Feb 2016 @ 2:09pm

I think what it comes down to is that A user must be 13 yrs of age to use facebook and some parent didn't want their kids to see it so they tattled rather than just block the sex obsessed poster.
See any and all criticisms of feminism/male-hatred means that you are some abusive and violent person. Hell, feminists could demand to eat a baby on TV and anyone who didn't want to watch that would be automatically accused of hating ALL women. As a female, even I get tired of the 24/7 media coverage about how bad males are and that they should be ashamed of simply being born without a vagina and as a whole, women don't like to take responsibility and by giving them attention with rubbish articles like this one you can bet that they somehow become even more oppressed.
Now you can date whoever you want but most men won't date feminist because no all me like taking a strap-on while wearing assless leather chaps such as I suspect this author does.

Man = Evil and Women = Blameless -- NBC
Man = Evil and Women = Blameless -- FOX
Man = Evil and Women = Blameless -- CNN
Man = Evil and Women = Blameless -- ABC
Man = Evil and Women = Blameless -- CBS
Man = Evil and Women = Blameless -- Tumblr
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Chris Rhodes (profile), 10 Feb 2016 @ 2:10pm

Re: Re: Re:
I would say that regulating them merely because the phones themselves might be manufactured in one state and shipped to another would be a stretch of the interstate commerce powers. I mean, that applies to just about every product.
Given that the feds interpret "interstate commerce" to mean "anything that could conceivably have any economic effect ever", it's not a stretch at all, sadly.

Other things that qualify as "interstate commerce", according the the federal government:
1. Raising grain on your own land to feed your own cattle (Wickard v. Filburn)
2. Growing pot in your own house to smoke yourself (Gonzales v. Raich)
3. Possessing a gun in a school zone (United States v. Lopez)
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Anonymous Coward, 10 Feb 2016 @ 2:11pm

What we need is a Federal SLAP bill.
Any state or federal congressman who submits a stupid bill is slapped silly until they get some sense.
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DannyB (profile), 10 Feb 2016 @ 2:50pm

But where does it stop?
Encryption bans. It's a slippery slope.

Now there is this nationwide ban on encryption bans.

But next there will be a ban on nationwide bans on encryption bans.

And then a ban on that.
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DannyB (profile), 10 Feb 2016 @ 2:52pm

Re: I have an idea
Oh, man. Now that's just crazy talk. But . . . terrorists!
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DannyB (profile), 10 Feb 2016 @ 2:55pm

Re: Re: Re: Halfway there...
Do you have an example of such a case?

The MPAA getting a back door implemented so they can determine whether any encrypted communications might be . . . (OMG!!!) Puracy!
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Anonymous Coward, 10 Feb 2016 @ 9:55pm

While I appriciate that this proposal and that there are some out there who are not complete bonkers, it shouldn't be needed and it shouldn't need to come from someone with a degree in Computer Sience.
You don't need a complete education in computers and how they work, to understand why banning or backdooring encryption is bad. Everyone with even basic knowledge and maybe a couple of hours of further explaining or reading, should be able to get this. You don't need to know how encryption works in detail to get a broad picture.
I believe that with some luck and a couple of special tutors, even a politician should be able to learn this.
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Anonymous Coward, 11 Feb 2016 @ 1:52am

Please, even if this bill were to pass - they'd just change the wording of it to a bill mandating banning encryption technologies at the eleventh hour.
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Anonymous Coward, 11 Feb 2016 @ 4:21am

Re:
Feminism has nothing to do with male hatred and everything to do with equality.

I am a male and I am aligned with feminist views.

There are, however, females that hate men which are probably better called female chauvinist.
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Anonymous Coward, 11 Feb 2016 @ 5:14am

Re: Re:
then we just need to teach most of congress, the president, the vice president and oh let's say 99% of his administration to comprehend basic english
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johnjac (profile), 11 Feb 2016 @ 6:02am

You say you want a Revolution?
So in the 90's we blocked the export of strong crypto to keep us safe, now the plan in the 2010's is to block the import of strong crypto?
We're 180º from where we started, but not in the direction we thought.
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Anonymous Coward, 11 Feb 2016 @ 11:09am

Re: Re: Re: Halfway there...
Well, I for one do enjoy easy access to my backyard.
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John Fenderson (profile), 14 Feb 2016 @ 6:58am

Re: Re: Re: Re: Halfway there...
I can come up with many reasonable hypothetical cases, but it doesn't matter.

Banning backdoors runs into a critical problem that is identical to mandating backdoors: you're making certain kinds of math illegal. I should be able to create and implement my own crypto scheme with a backdoor if I want. What would be the rationale for the ban?

The problem is in mandating backdoors, and if the existence of backdoors is kept a secret, then there is the additional problem of fraud.
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