Nevada has no business mandating a remote kill switch for cellphones

The Silver State is still basking in praise uttered last month by Tesla founder Elon Musk, who dubbed Nevada a “get things done” state. What a shame if we followed the business-friendly feats that persuaded Tesla to locate its battery plant here with legislation signaling the opposite attitude – – like requiring cellphones sold in Nevada to have remote kill capability.

The 2015 Nevada legislature will contemplate the kill switch mandate as a way to curb smartphone theft, according to a USA Today report.

Why would a state striving to reinvent itself as a technology haven insert itself into design standards for a globally-distributed tech product? Surely not because Nevada wants to emulate California, where a new kill switch law goes into effect next July.

Perhaps the advocates anticipate the reliable political boost that comes from supporting a crime bill, even when the resulting law is largely symbolic. In this case, symbolic because Apple, Google and Microsoft, which together command nearly 100 percent of the smartphone market, are already equipping their devices with remote anti-theft features, or preparing to do so in their next versions. For the tiny remainder of the market, mostly Blackberry users, the remote-kill feature has existed for years.

Beyond the politics, when governments manipulate the architecture of communication equipment, privacy and civil rights implications must be considered. State-mandated remote access provides an opening for abuse, as demonstrated by federal backdoor requirements that paved the way for spying and cybercrime.

The new California law says service to a phone can be halted only by “an authorized user.” But guess who is “authorized” besides the owner of the phone? Government at any level, right down to the dog catcher. The California statute incorporates a Public Utilities Commission Code section allowing a “government entity” – – broadly defined – – to get a court order requiring  the provider to cut service for a “reasonably necessary” period.

"Governmental entity" means every local government, including a city, 
county, a transit, joint powers, special, or other district, the state, 
and every agency, department, commission, board, bureau, or other 
political subdivision of the state, or any authorized agent thereof.

Based on this language, a bus supervisor or a fire inspector could conceivably be an authorized agent.

The circumstances allowing a government-ordered shutdown include probable cause that the phone is being used for an unlawful purpose. Or that without intervention, there is jeopardy to public health, safety or welfare.

Civil libertarians are going on the record with warnings that peaceful protesters might be shut down, or that law enforcement might misuse the remote kill. And it’s hardly ridiculous to wonder what public welfare threats involving individual cellphones government might perceive.

Sections authorizing government use will be the consequential portion of any Nevada kill switch law, given the industry’s already clearly-stated intention to provide anti-theft technology. Observers of Nevada’s 2015 session should watch closely. Or, maybe Nevada’s stated goal of luring tech will prevail, and the legislature will spend its time on other matters.

Not without a fight: Keeping the cops out of your iPhone

Law enforcement has its boxer shorts in a bunch following Apple’s announcement that iPhone 6 and iOS 8 devices will be protected from the probing eyes of police. Google, too, will complicate criminal investigations by changing its optional Android encryption feature to automatic.

Federal officials are “bracing for a confrontation with Silicon Valley” over encryption-by-default, reports the Wall Street Journal. A former FBI official called the new privacy feature “outrageous,” and likened it to an invitation for criminals to use the products.

Lame-duck Attorney General Eric Holder piled on this week, denouncing encryption and other privacy tools to the Global Alliance Conference Against Child Sexual Abuse. Holder wants tech companies to provide back doors into their products. To save the children, of course, whose exploitation at the hands of perverts is second only to their exploitation by the political class.

Criminals are certain to use encrypted smart phones, but so are millions of law-abiding citizens who’d like to send private messages to their physicians, their business prospects, and their mistresses. Some of them might snap a nude selfie or two. Everyone has perfectly legal secrets to keep.

Bravo to Apple and Google for their late, if grudging, arrival to the privacy party. In this arena, it should be noted that Apple is following, not leading. The privacy community celebrated the release earlier this year of the encrypted Blackphone, an Android adaptation with amped-up security and privacy. Blackphone hails from Switzerland. The company was located there for precisely the reasons outlined above, by an American technology entrepreneur who champions privacy.

Law enforcement’s fight for continued easy access to devices, cloud storage, and business-grade communication tools compromises the American economy, as well as personal privacy. Global companies have reservations about buying products that are open to U.S. government fishing expeditions. Just one more reason for American innovators to move offshore.

And this squabble ignores the valuable role of encryption in fighting cybercrime. Both personal and business data need to be properly encrypted. The fight to secure your snapshots is one thing. But guarding embedded systems that control water and power facilities is the next level.  As is the safety of intellectual property that’s the lifeblood of innovation. How about keeping criminals and terrorists out of the banking networks and the airport control towers?

Holder and company are apparently willing to expose a data pool far greater than the rate at which your next-door neighbor consumes dirty movies. (Evidence of which, incredibly enough, is sometimes seized by prosecutors grasping for dubious rape convictions, in order to establish predatory intent.)

Police have many avenues to truly relevant evidence. Third-party billing records and court orders requiring legitimate suspects to turn over their encryption keys offer a slower, but better-considered route. More generally, the surveillance deck is stacked heavily in law enforcement’s favor.

It’s time to nix the notion that our privacy is disposable because there’s a guy waiting behind every bush to molest children and grab college girls, or that everyone who carries more than one cell phone must be a drug dealer. Such an allusion to multiple phones was made by none other than Chief Justice John Roberts, even as he was about to author this summer’s Supreme Court decision requiring warrants for cell phone searches.

It’s also time to hit back at the rhetorical last refuge of scoundrels. “What if it was your daughter?” – a wretched query hurled regularly at privacy advocates, as if only those unscathed by crime should appreciate principles that protect all citizens from intrusions into their personal affairs.

These tired crime-fighting tropes need a rest, and so does the assumption that every technological tool should be an automatic enhancement to police power. These are stops along a path that leads to fear and mistrust of the police. That’s not a desirable outcome for any of us, as we saw in Ferguson, Missouri.