House bill would prevent patchwork of state laws banning smartphone encryption

Four bipartisan members of Congress introduced legislation this week to preempt a potential patchwork of state and local government laws banning encryption on smartphones.

The measure, called the ENCRYPT (Ensuring National Constitutional Rights for Your Private Telecommunications) Act of 2016, is intended to ensure a uniform national policy for encryption technology, according to a statement from the lawmakers.

U.S. Rep. Ted W. Lieu (D-Calif.), joined Reps. Blake Farenthold (R-Texas), (Suzan DelBene, D-Wash.) and Mike Bishop (R-Mich.) in sponsoring the measure.

The lawmakers are worried initially about bills sponsored by state legislators in California and New York that would ban encryption on any smartphone sold in their states.

Encryption is used on many smartphones, including recent iPhones and Android phones, and is designed to protect a user’s personal data, such as private financial and health information, from snooping eyes. A decryption key is needed to open encrypted data, and that key is not typically available to smartphone makers and is only available to the phone user, often through a passcode. As a result, smartphone makers like Apple have told intelligence officials, the FBI and others that they cannot decrypt data on the latest smartphones, which are protected by full-disk encryption.

The ENCRYPT bill arrived as FBI Director James Comey and others have tried to persuade tech giants to share encrypted data, especially on smartphones, to help them investigate crimes and terror attacks.

Comey told the Senate Intelligence Committee on Tuesday that a phone used by one of the terrorists in the San Bernardino, Calif., shootings is still encrypted and cannot be hacked. He also said a woman killed in Louisiana last April used an encrypted iPhone that could provide clues to her killer.

The proposals in New York and California, if passed, would require manufacturers of encrypted smartphones to enable decryption of data on the phones made after 2017.

“A patchwork of 50 different encryption standards is a recipe for disaster that would create new security vulnerabilities, threaten individual privacy and undermine the competitiveness of American innovators,” Lieu said in a statement. “It is bad for law enforcement, bad for technology users and bad for American technology companies. National issues require national responses. The ENCRYPT Act makes sure this conversation happens in a place that does not distrupt interstate commerce.”

Trade groups including Information Technology Industry Council and Internet Association and Internet Infrastructure Coalition quickly endorsed the ENCRYPT measure.

New York Assemblyman Matthew Titone introduced a bill in June to block encrypted smartphones in that state. California Assemblyman Jim Cooper introduced a similar bill affecting smartphones sold in California in January. Both legislators are Democrats.

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