By Kate Tummarello - 08/16/14 12:41 PM EDT
Tech and civil liberties groups are pushing back on a California "kill switch" bill that they warn could be used to silence protests like the ones seen this week in Ferguson, Mo.
Critics say a California bill passed on Monday contains a dangerous carve-out that could give law enforcement the power to shut down cellphones during emergency situations, possibly including public demonstrations.
It requires that the “kill switches” be turned on by default, though a user can opt out of using the tool.
If signed by Gov. Jerry Brown (D), the bill will add to the features that some companies already offer to let users disable their phones if stolen.
But the bill “is not explicit about who can activate such a switch,” the Electronic Frontier Foundation said in a June letter opposing the bill.
“And more critically, the solution will be available for others to exploit as well, including malicious actors or law enforcement.”
Concerns about the provision have been heightened by the demonstrations this week in Ferguson, where police at times demanded that protestors and journalists turn off the video cameras on their phones.
Jake Laperruque, fellow on privacy, surveillance and security at the Center for Democracy and Technology, said the California bill could create the potential for an abuse of power by law enforcement.
“This could effectively be co-opted to disrupt protests,” Laperruque said.
“So much of what’s happening [in Ferguson] is relevant,” he continued, wondering what the situation would look like “if this was required there.”
The bill’s supporters say it incorporates protections against the hypothetical police actions.
The measures specifically references California law that requires law enforcement to obtain a warrant to interrupt communications services except in the cases of “extreme emergency” situations.
In situations where there is “immediate danger of death or great bodily injury and there is insufficient time, with due diligence, to first obtain a court order,” law enforcement officials must quickly obtain retroactive court approval for activating the kill switch.
Max Szabo — a spokesman with the San Francisco District Attorney’s office, which supported the bill — called critics concerns “alarmist” and “akin to ambulance chasing.”
“This legislation addresses the violent, global epidemic of smartphone theft,” he said.
“Not only does the bill forbid usage of such technology by government without a court order, these solutions will only be available on smartphones.”
According to 2013 figures from the Public Policy Institute of California, roughly 58 percent of California residents have smartphones.
Because the bill only requires kill switches for smartphones — as opposed to all cellphones — “the utility of limiting speech for a fraction of protesters defies logic and basic commonsense,” Szabo said.
In its letter, the EFF notes that current California law limits when law enforcement would be able to use the kill switches but also “provides the necessary legal roadmap” to disable cellphones in some circumstances.
“Because it is difficult to implement a ‘kill switch’ that can only be utilized at the behest of the device user but not third parties or the government, EFF strongly believes the state should not mandate this backdoor be installed into phones in California.”
Laperruque agreed that those legal protections are insufficient.
“If you give law enforcement a tool that can be abused, you’ll have an instance of asking for forgiveness rather than permission,” he said.
The bill “creates a pretty concerning risk considering history on the issue,” he said, recalling a controversial 2011 decision by San Francisco’s subway authority to interrupt cellphone service in the hope of clamping down on protests.
While the bill is specific to phones sold in California, phone companies may “just start doing this nationally” to cut down on costs, meaning law enforcement could soon have access to the power in every state, Laperruque said.
Laperruque said the focus should be on creating a federal cellphone kill switch bill, such as the one from Sen. Amy KlobucharAmy KlobucharOvernight Defense: US attempted hostage rescue in Afghanistan | Defense hawks brace for spending fight | Trump slams 'lies' about Iraq war stance Senators want military separation policy to address trauma-related behavior Senate Dems reignite fight for hearing on SCOTUS nominee MORE (D-Minn.) and Rep. Jose Serrano (D-N.Y.), which would let device owners wipe their phones of personal data and make the phones inoperable if stolen.