On August 11, 2014, the California Senate passed cellular phone anti-theft legislation, sending it to Governor Jerry Brown to be signed into law.  The bill, SB 962, mandates that any smartphone built and distributed in California after July 1, 2015 must have a “technological solution” that would prevent new access to the phone network.  If signed by Governor Brown, California would join Minnesota to become the second state in the country to pass cellular anti-theft legislation requiring that consumers have the option to render stolen phones inoperable.

Smartphone theft has become an issue of considerable impact. Within SB 962, the California legislature cites statistics from the Federal Communications Commission, Consumer Reports, and the New York Times that between 30% to 40% of robberies in large cities located in the United States involve cellular device theft, “1.6 million Americans were victimized for their smartphones in 2012,” and “113 smartphones are lost or stolen every minute in the United States,” respectively.

These state legislative actions trail the telecommunication industry’s push to strengthen anti-theft technologies.  The industry’s focus on these needs culminated in the April 2014 Smartphone Anti-Theft Voluntary Commitment, which is an agreement by major cellular entities to safeguard personal data from thieves through technological additions to a consumer’s cellular device.  These additions also include blocking efforts to restore factory settings and erasing personal data after a loss of the device.

This initiative may have had considerable preventative effects on smartphone device thefts.  The introduction of Apple Inc.’s anti-theft feature on iOS 7, Activation Lock, has produced encouraging results in the months following its introduction.  For example, law enforcement officials in San Francisco, London, and New York indicate the new feature may have dramatically reduced iPhone theft figures.

However, SB 962 faces opposition.  First, CTIA-The Wireless Association, a telecommunications industry organization, stated that legislation from individual states would reduce companies’ “flexibility,” to the consumers’ detriment.  Next, activist resistance to the bill has emerged.  For example, the Electronic Frontier Foundation (EFF) penned a June 16, 2014 letter opposing the bill.  According to the EFF, it disapproves of SB 962 because it believes the law’s “kill switch” requirement stifles competition that would improve device security techniques and because the group believes the bill language is vague when describing who may use the security apparatus, which EFF believes opens the door for governmental use.

Moreover, the latter concern has recently gained more attention in light of the recent events in Ferguson, Missouri.  According to Jake Laperruque, a fellow at the Center for Democracy & Technology, the California bill may permit government entities to disturb communications when read in conjunction with § 7908 of the California Public Utilities Code, which outlines the conditions in which law enforcement may “interrupt communications service.”

Finally, as the mobile device industry appears to support the inclusion of “kill switches” in their products, it now remains to be seen whether the efforts of Minnesota and California to codify these anti-theft measures will spread to other states in the country.  Though comprehensive data on the policy’s impact is not yet ubiquitous and various groups have civil rights concerns, it is possible the two states have begun a new legislative trend to protect smartphone owners from the contemporary issue of smartphone theft.

Matthew Gaske

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