A new law signed this week by Gov. Jerry Brown makes California the second state to mandate a remote “kill switch” for all smartphones—but at what cost to the Constitution?
Earlier this month, the state Senate put its final stamp of approval on SB 962, which requires all smartphones produced after July 1, 2015, to include a feature allowing users to deactivate them from afar. Brown signed the bill on Monday afternoon—an act in sync with his veto last year of an email privacy bill.
By making it easy to thwart a would-be thief’s enjoyment of his prize, lawmakers hope to reduce a smartphone’s black-market value and thus to render the pursuit ineffective in the first place.
“Our goal is to swiftly take the wind out of the sails of thieves who have made the theft of smartphones one of the most prevalent street crimes in California’s biggest cities,” said the law’s sponsor, State Sen. Mark Leon, at the time of the Senate vote.
Indeed, despite a concerted effort to stem the tide, cellphone theft is a rapidly growing “epidemic” costing $30 billion to consumers every year. And law enforcement officials like San Francisco District Attorney George Gascón have not been satisfied thus far with the voluntary efforts of wireless companies.
“The wireless industry must take action to end the victimization of its customers,” he told the Los Angeles Times.
In May, Minnesota became the first state to introduce a “kill switch.” But Minnesota asks users to opt in to the feature, whereas the California law requires activation by default.
Of course, the new regulation is not wanting for critics. The San Francisco-based Electronic Frontier Foundation, a digital rights advocacy group, led the charge against its passage.
“Technology is fast; the law is slow,” wrote EFF’s Adi Kamdar. “While there is an important place for policy in a world where the Internet and devices are readily available to both consumers and government actors, institutionalizing specific technical solutions—such as making every cell phone manufacturer feature a ‘kill switch’ program—is risky.”
That institutionalization, Kamdar said, can stifle further security innovation in the private sector. More importantly, the “kill switch” is ripe for abuse by predatory hackers or, worse, unfriendly governments.
“[The] events in Ferguson, Missouri highlight the risks of abuse all too clearly,” wrote Jake Laperruque of the Center for Democracy & Technology. “If the California bill were in place in Missouri, [those] officers might deploy the government kill switch alongside tear gas and rubber bullets, using the mandated technology to stop coordination between protesters, cut off access to outside information, and shut down video recordings that can deter police misconduct.”
And this isn’t the stuff of fiction. Laperruque points to a notorious 2011 incident in which public transit authorities in San Francisco shut off cellphone service to counter protest over the shooting of a man at the hands of transit police.
The CTIA, an association of wireless companies, also opposed the California legislation, calling it “unnecessary” and anticipating “negative consequences to consumer security and public safety” in a letter co-signed by several industry members.
Jamie Hastings, CTIA vice president, echoed the EFF’s concerns about limiting potential.
“Uniformity in the wireless industry created tremendous benefits for wireless consumers, including lower costs and phenomenal innovation,” she said. ”State by state technology mandates, such as this one, stifle those benefits and are detrimental to wireless consumers.”
Minnesota and California are being closely watched by other states that will consider or have considered similar measures, including Illinois,New York and Rhode Island. And a quartet of senators led by Sen. Amy Klobuchar of Minnesota has proposed similar legislation at the federal level.
“Sometimes these proposals don’t get enough critical inspection,” EFF’s Parker Higgins told the Washington Post. “It needs to be in the control of the user … [I]f we make this part of the system of the police procedure on phone theft, it can raise all kinds of problems.”
Nicandro Iannacci is a web strategist at the National Constitution Center.
Philadelphia’s National Constitution Center is the first and only nonprofit, nonpartisan institution devoted to the most powerful vision of freedom ever expressed: the U.S. Constitution. Constitution Daily, the Center’s blog, offers smart commentary and conversation about constitutional issues in the news, drawing insights from America’s history and a variety of expert contributors.