House bill would block states on encryption legislation

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Two lawmakers want to halt state lawmakers from moving on legislation that could affect encryption standards.

Reps. Ted Lieu (D-Calif.) and Blake FarentholdBlake FarentholdHouse leader promises vote on exempting Olympic medals from taxes House panel to vote on exempting Olympic medals from taxes GOP rips into Lynch, who refuses to discuss details in Clinton case MORE (R-Texas) on Wednesday introduced a bill, the so-called Encrypt Act, that would preempt state and local government from passing encryption-related laws.

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The measure comes on the heels of nearly identical legislation in two states — New York and California — that would ban the sale or manufacture of fully encrypted smartphones that lock out law enforcement officials.

Lieu and Farenthold's measure would bar states from passing any mandate that requires companies to alter the design of their encryption for investigators seeking access. 

“You can’t have Apple and Google making a smartphone just for California and New York and then making a different one for the rest of the country,” Lieu told The Hill.

In the wake of the terror attacks in Paris and San Bernardino, Calif., Congress has been involved in heated discussions over whether to move on a bill that would give law enforcement guaranteed access to encrypted data.

The FBI has repeatedly warned that fully encrypted communication platforms are helping terrorists and criminals hide their communications from investigators.

But the tech community has stood behind strong encryption, arguing that ensuring access to locked data introduces a vulnerability — or “backdoor” — that hackers could exploit to steal troves of personal data.

The Lieu-Farenthold bill would not weigh in on that debate. But it would say that any decision should be made at the federal level.

'“Whether one agrees or disagrees with putting backdoors in encryption systems, I think all members of Congress can agree that we cannot have states making inconsistent decisions on this issue,” said Lieu, who has been one of Congress’s most vocal opponents of backdoors.

Lieu and Farenthold on Tuesday circulated a letter to their House colleagues, urging support on the measure.

The letter specifically cites the California and New York bills as the impetus for their efforts.

These state bills, the lawmakers argue, “would likely force a company like Apple to choose between not selling its encrypted-by-default iPhones in those states or developing an alternative product line with weaker security.”

They could also create a slippery slope for future state-level bills.

“Broader bills could soon encompass phone applications and cloud-based services like WhatsApp and Gmail,” the letter says.

When the first state-level encryption bill was introduced in New York, few took it seriously. The measure was backed by a Republican lawmaker in a Democratic legislature and was seen as having little shot at passage.

But the California bill faces better odds, said Lieu, a former California state senator. A Democratic assemblymember is behind that bill, and Democrats control the legislature.

The Lieu-Farenthold offering has been endorsed by a number of leading tech industry groups, including the Internet Technology Industry Council and the Internet Association.

In meetings with these groups regarding the state laws, Lieu said the message was clear: “They don’t see how they can make this work.”

“Having states do this will simply make a mess across America and I don’t see how companies could ever comply,” Lieu added.