California Kill Switch Law’s Effects Could Be National; Minimal Legislative Progress Seen Elsewhere

The wireless industry may be poised to adopt kill switch technology consistent with SB-962 nationwide, said Max Szabo, manager-legislative affairs and policy for San Francisco District Attorney George Gascón, a major backer of SB-962. At least one wireless company has told Gascón’s office that it will use SB-962’s standard nationally, in part because given the industry’s global reach, the wireless industry “doesn’t want a patchwork of local regulations” on kill switch standards, Szabo said. CTIA said an industrywide pledge earlier this year to include kill switch software and other anti-theft technology on smartphones manufactured after July 2015 (CD April 17 p10) makes bills like SB-962 unnecessary. Industry and law enforcement agencies are also working with the FCC’s Mobile Device Theft Prevention Working Group to identify nationwide smartphone theft prevention solutions, said Szabo, a member of the working group.

Federal legislation requiring kill switches, known as the Smartphone Theft Prevention Act, hasn’t advanced since its introduction in February. Sen. Amy Klobuchar, D-Minn., introduced the Senate version (S-2032) with three Democratic co-sponsors, and Rep. Jose Serrano, D-N.Y., introduced the House version (HR-4065) with 17 Democratic co-sponsors.

SB-962 and a Minnesota’s anti-theft law enacted in May (CD May 12 p8) “demonstrate a demand for this type of technology, and I'm continuing to push to ensure that all consumers have access to the most advanced technologies to protect themselves, their smartphones, and their personal information,” Klobuchar told us in a statement. “Mobile devices aren’t just simple phones anymore -- increasingly people’s livelihoods depend on them. We need to do more to crack down on criminals who are stealing and reselling these devices, costing consumers billions every year and threatening public safety.” The Senate version was referred to the Commerce Committee and the House version to the Communications Subcommittee. Spokespeople for the Senate Commerce Committee declined comment on the prospects of any legislative movement later this year, and a spokesman for the House Communications Subcommittee didn’t comment.

Whither the States?

California felt it needed to act in the absence of progress in Congress on S-2032 and HR-4065, Szabo said. Gascón’s office is “hopeful that Congress does take action to ensure that wireless consumers across the country have these protections guaranteed, but we're confident that the standard required by the California law will be implemented across the country,” he said. There’s still a “tremendous amount of public pressure” to see public policy solutions to smartphone theft that could propel Congress, the FCC and other states to act, Szabo said.

Five states were considering kill switch or other anti-theft legislation before the wireless industry announced its voluntary commitment, and since then only California and Minnesota have passed their bills. Lawmakers in Illinois and Rhode Island scuttled their bills after the industry pledge, though Rhode Island Rep. Mary Messier told us she’s prepared to reintroduce her H-8115 (http://bit.ly/1Ca8x6p) during the next legislative session if industry doesn’t adequately follow through on its commitment. “We'll be checking up on what’s going on with that and will be prepared to re-introduce legislation if it’s not going to happen,” said Messier, a Democrat.

New York’s legislation will likely re-appear when the legislature reconvenes in January, said a spokeswoman to Sen. Tony Avella, a Democrat who sponsored S-6850 (http://bit.ly/1iz9R5D). S-6850 failed to make it to a full Senate vote before the legislature adjourned in June, state Assembly bill A-8984 (http://bit.ly/1vu9lBr) had a similar fate. Avella is “very much committed to following through on this bill,” Avella’s spokeswoman said. “This is definitely still a priority -- it’s not something he’s going to back off of.” Avella had amended S-6850 prior to the end of the legislative session to address wireless industry concerns, primarily by narrowing the bill’s definition of what a smartphone constitutes, along with related definitions, the spokeswoman said. Avella plans to coordinate with A-8984’s sponsor, Democratic Assemblyman Matthew Titone, when the legislature re-convenes, the spokeswoman said.

Any anti-theft legislation “should provide carriers with flexibility to innovate and stay ahead of the curve on device theft issues,” CCA President Steve Berry told us in a statement. Some current anti-theft technology from Apple and others would satisfy SB-982’s requirements, but “many smaller carriers still do not have access to the latest Apple devices and therefore do not have access to that particular solution. Policymakers should make sure innovative devices are available to all consumers; anything less is technology denial."

Civil Liberties Concerns

Public interest groups have concerns with a provision in SB-962 that requires law enforcement agencies to obtain a warrant to shut down smartphones, except in emergency situations where the threat of death or bodily harm is “immediate.” Both the Center for Democracy and Technology (CDT) and the Electronic Frontier Foundation (EFF) said previously that third-party use of the kill switch was problematic, but Jake Laperruque, CDT fellow-privacy, surveillance and security, more recently tied those concerns to recent police actions to quiet protests in Ferguson, Missouri. Police had order protestors and reporters not to use recording devices during the August protests. If SB-962 had been in effect in Missouri, police could have used the kill switch “to stop coordination between protesters, cut off access to outside information, and shut down video recordings that can deter police misconduct,” Laperruque said in a blog post (http://bit.ly/1Aub8Xi).

The exception is problematic because of a 2011 incident in which Bay Area Rapid Transit officials had shut down wireless service in three stations in the San Francisco rapid transit system before a planned protest, Laperruque said in an interview. “There’s already a history there of using that excuse to shut down protests, and we could see it again,” he said. “If the kill switch does start to get pushed out onto phones across the country, other states don’t have any restrictions on how it could be misused by law enforcement, which creates even more worries.”

Szabo said Laperruque’s concerns were “farfetched and have no basis in fact,” saying CDT is “hijacking the national conversation” about the Ferguson protests “for devious ends.” Existing California law would prevent police abuses of the kill switch, Szabo said. He also said SB-962 only covers smartphones rather than all cellphones, meaning it would affect only the 58 percent of California cellphone users who have a smartphone. “Why would you only quell speech for a fraction of people?” Szabo said.

The federal S-2032 is similar to California’s SB-962 but allows only the owner of smartphone to activate the kill switch, which “appears to be a pretty clear and conscious effort to ensure that law enforcement can’t co-opt the kill switch,” Laperruque said. S-2032, if passed, would effectively pre-empt SB-962’s emergency exceptions provision, he said.

The Cell Phone Freedom Act (HR-4952), introduced in June by Rep. Morgan Griffith, R-Va. (CD June 30 p12), would also address First Amendment protections related to cellphones. Griffith praised the wisdom of kill switches but said he wants to prevent government officials from accessing consumers’ kill switch technology without a court order or permission of the smartphone owner. That legislation, co-sponsored by Rep. Tom McClintock, R-Calif., was referred to the House Judiciary Crime Subcommittee on July 21, and spokespeople for both the Judiciary committee and crime subcommittee chairman didn’t comment.

Most people “are still focused on the kill switch itself,” Griffith told us, saying he’s “hopeful” Congress turns to the technology’s privacy implications eventually. “I think there will be more discussion as time goes by.” Griffith said he has no sense of bill ownership and is happy if the language is integrated into other legislation, but stressed its need. He framed various possible abuses, imagining authorities shutting down phones over a geographic area via the kill switch function or perhaps lone violations, considering the case of a police deputy looking up information on the lover of his cheating girlfriend. It “ought to be a crime” to abuse the kill switch, Griffith said. The state laws passed in California and Minnesota may unintentionally lead to such a kill switch abuse, in which “somebody is going to do something they shouldn’t,” and create the impetus for advancing his legislation, “a common-sense bill that does follow the principles of the Constitution,” he said. “I think I've got the solution before the problem.”

But the kill switch itself is a “great idea,” Griffith said. He hasn’t talked with Serrano but “I'll certainly raise that issue with his office” in the fall, he said. Griffith is not hopeful about any kill switch legislation moving unless there’s a real groundswell of support on the issue. “We're in the middle of an election cycle,” Griffith said. “Probably nothing is going to happen.”