The Blind Leading The Blind: CA and NY Push anti-encryption for smartphones

California Joins New York in Opposing Phone Encryption (ComputerWeekly.com):  Warwick Ashford, writing for Computer Weekly reports that now California is joining New York in considering legislation to force technology companies to give law enforcement workaround to access encrypted devices.  Ashford states that the means proposed by New York and California to access encrypted data are similar; however the ends are somewhat divergent as the NY focus is on countering terrorism whereas California is focused on eliminating human trafficking.

The article posits that were these proposals to be passed then businesses in New York or California that require encrypted devices would be forced to buy or lease said devices from suppliers that from outside states.  Furthermore, the tech companies themselves are staunchly opposed to back-door access to encrypted devices, according to the article.

So is the NY and California approach more a “blind leading the blind”, or perhaps “dumb and dumber”?   The California Assemblyman that is spearheading this legislation, Jim Cooper, readily admits that 99% of Californians’ phones would not be involved in any law enforcement operations, yet this legislation would make 100% of all the California devices more vulnerable to hacking, according to Ashford.

Cooper, apparently not a strong Constitutional advocate is quoted in the article as saying “… Human trafficking trumps privacy, no ifs, ands or buts about it”. This view seems to be in opposition to some recent high-profile Supreme Court cases, but why let a silly thing like the Constitution or the Supreme Court get in the way of really good legislation.  Meanwhile, the Dutch government has taken the view that strong encryption is vital to protecting national interests and the protection of citizens, reports Ashford.

If we ignore the privacy argument, the role of smartphones and their manufacture and sale in interstate commerce, then New York and California might be able to make a case for restricting the sale of encrypted devices that don’t allow back-door access for law enforcement.  Of course, if we look at the Constitution or the Supreme Court’s interpretation of privacy rights these proposed pieces of legislation seem like nothing more than grandstanding and trying to appeal to the “flavor of the month”.  One needs to look at the overall picture and understand that the introduction of back-doors for access to encrypted data merely simplifies the state and non-state actors ability to obtain and exfiltrate data.  If we develop a blanket policy with respect to encryption then we chip away at the very foundation of internet communication and the ability to establish secure communication channels for the transmission of sensitive data (i.e. performing financial/banking transactions, encrypting sensitive corporate data such as trade secrets, etc.).

It is, therefore my opinion that if you want my encrypted data you will have to pry the private keys from my cold dead hands — no secret backdoor access should be allowed.

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Professor William Snyder

Professor William C. Snyderis a member of the faculty of the Institute for National Security and Counter-terrorism at Syracuse University after fifteen years with the United States Department of Justice.

Ryan D. White

Ryan D. WhiteRyan is currently a third year law student at Syracuse University College of Law, and is also pursuing a Master of Public Administration degree from Syracuse’s Maxwell School of Citizenship and Public Affairs. Ryan spent time with Homeland Security Investigations while pursuing his undergraduate degree at Wesleyan University, and spent his first summer of law school as clerk for the U.S. Attorney’s Office in the Western District of New York. He is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and participates in the Veteran’s Legal Clinic. Full biography

Shelby E. Mann

Ryan D. WhiteShelby is a second year law student at the Syracuse University College of Law. During her final year at the University of Missouri, she served as a full-time news producer for ABC 17 News. Shelby spent her first summer of law school at the Shelby County District Attorney General's Office in Memphis, Tenn., in the Public Corruption and Economic Crimes Unit. She is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and the senior editor for the Syrian Accountability Project. Full biography

Christopher w. FolkChristopher W. Folk

is a 2017 graduate of SU College of Law. A non-traditional student, Christopher returned to academia after spending nearly twenty years in the high tech industry. Christopher served in the Marine Corps, graduated from Cornell University with a B.S. In Applied Economics and Business Management, attended Northeastern University’s High-Tech MBA Program and received a M.S. In Computer Information Systems. Christopher previously worked in Software Engineering. Christopher is currently serving his second term as Town Justice for the Town of Waterloo. Christopher externed with a Cybersecurity firm in the Washington, D.C. area between his first and second year at SU College of Law. Full biography

Anna Maria Castillo

is 2016 graduate of Syracuse College of Law. She also holds a Master of Arts in International Relations from Syracuse University's Maxwell School of Citizenship and Public Affairs. She has interned at a London-based think-tank that specializes in transnational terrorism and global security and at the legal department of a defense contractor. She served as an executive editor in the Syracuse Law Review. Full biography

Jennifer A. CamilloJennifer A. Camillo

is a 2015 graduate of Syracuse College of Law and is a prosecutor. She has served as a law clerk in the United States Attorney’s Office for the Northern District of New York and the Cayuga County District Attorney’s Office and as an extern in the Oneida County District Attorney’s Office. She was a member of the Syracuse National Trial Team and was awarded the Tiffany Cup by the New York Bar Association for her trial advocacy achievements.

Tara J. PistoreseTara J. Pistorese

holds Juris Doctor and Masters of Public Administration degrees from Syracuse University's Maxwell School of Citizenship and Public Affairs and its College of Law. She wrote for this blog when a student. She is now a member of the U.S. Army Judge Advocate General's Corps.

Benjamin Zaiser

is both a scholar and a Federal Agent of the Federal Criminal Police Office of Germany. (Opinions expressed here are his own and not any part of official duty.) Full biography

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