ENCRYPT Act would prevent states from banning digital encryption

Encryption — a process of encoding digital messages so third parties cannot access or read it — has become one of the biggest topics in the news over the past few years. This month, Apple is refusing a court order to bypass encryption on the San Bernardino shooter’s iPhone. More people are using encryption tools in their digital communications, more tech companies are adopting it as a standard, and more journalists are utilizing it for their reporting.

New York and California have introduced bills to ban sales of encrypted smartphones. Although neither bill has passed — and indeed, both might fail — a federal bill would nationalize the issue and prevent states from passing such legislation in the first place. In other words, it would guarantee that all phone makers in America that want to include encryption would be allowed to.

Arguments for and against

The Ensuring National Constitutional Rights of Your Private Telecommunications (ENCRYPT) Act, H.R. 4528, was introduced in February by Rep. Ted Lieu (D-CA33). Lieu, one of only four computer science majors in Congress, has made digital privacy one of his pet issues.

“A patchwork of 50 different encryption standards is a recipe for disaster that would create new security vulnerabilities, threaten individual privacy and undermine the competitiveness of American innovators,” Lieu said. “It is bad for law enforcement, bad for technology users, and bad for American technology companies. National issues require national responses. The ENCRYPT Act makes sure that this conversation happens in a place that does not disrupt interstate commerce.”

The primary argument made by the state-level sponsors of these bills is that such devices make it harder for law enforcement to do their jobs and conduct searches on communications of likely criminals. Perhaps the most vocal advocate for this argument recently has been FBI director James Comey, who’s said, “We cannot break strong encryption. I think people watch TV and think the bureau can do lots of things. We cannot break strong encryption.” Comey claims this lack of access makes it harder for law enforcement to prevent future crimes or terrorist attacks and investigate past ones.

In Senate testimony, Comey gave an example besides the high-profile cases of terrorism and mass shootings. A Florida man kidnapped his girlfriend and sexually assaulted her, after which she escaped and pressed charges. Because he had filmed the sexual assaults on his non-encrypted phone, the FBI was able to arrest him after obtaining a search warrant for the phone.

In Congress, the bill has opponents among those who believe encryption is a means of undermining national security. This week, Rep. David Jolly (R-FL13) even introduced H.R. 4663, the No Taxpayer Support for Apple Act, which would forbid federal agencies from buying Apple products unless the company accedes to FBI demands to weaken encryption or allow “backdoor” access.

Odds of passage

The ENCRYPT Act has five co-sponsors, a small though bipartisan mix of three Democrats and two Republicans. They are Mike Bishop (R-MI8), Suzan DelBene (D-WA1), Anna Eshoo (D-CA18), Blake Farenthold (R-TX27), and Zoe Lofgren (D-CA19). It has been referred to the House Judiciary Committee’s subcommittee on Crime, Terrorism, Homeland Security, and Investigations.

But the bill is only relevant so long as the state bills stand a chance of passage. The California version in particular is considered a tough sell in the state that’s home to Silicon Valley, home of many of the largest tech companies.