States, privacy advocates battle over phone 'kill switch'

Anjeanette Damon | USA TODAY

A handful of states are pursuing legislation to require cellphone manufacturers to equip their devices with "kill switch" technology that would allow the phone to be remotely shut down and wiped of its information if it is stolen.

Those sponsoring the measures argue the requirement is necessary to combat a surge in cellphone thefts and to protect consumers from having not only their phone but much of their personal information stolen.

But the trend is alarming privacy advocates, who say law enforcement agencies can rely on the legislation to remotely shut down phones for public safety reasons, for example, in the event of a violent public demonstration. Such power could be used to rob citizens of the ability to use their phones' camera and recording functions to document police activity or to communicate with one another during a demonstration, they said.

"The idea of this being co-opted as an anti-protest tool is especially disturbing," said Jake Laperruque, a fellow on privacy, surveillance and security at the Center for Democracy and Technology, a Washington, D.C.-based policy organization.

Laperruque noted, for example, that police officers targeted protestors and journalists in Ferguson, Mo., ordering them to stop recording.

So far, two states, California and Minnesota, have passed legislation requiring manufacturers to equip phones with a kill switch. Both laws take effect next year.

Two more states are considering legislation: Nevada and New Jersey. In Nevada, the Attorney General's Office is sponsoring the legislation, which will be considered when the Legislature convenes in February.

"The point of the bill is to deincentivize the effectiveness of smartphones to thieves," said Deputy Attorney General Laura Tucker. "If a thief knows that if they steal a phone they can be 100% certain it can be wiped remotely, smartphones will be a less attractive target for thieves."

Smartphone thefts are on a sharp rise, particularly in large cities, where as many as one in three robberies involve a mobile device, according to the Federal Communications Commission. Cellphone thefts nearly doubled from 2012 to 2013, when 3.1 million phones were stolen, according to Consumer Reports.

In reaction, the industry has taken its own steps to help deter thefts.

"The safety and security of wireless users is the wireless industry's top priority, and we've taken significant actions to provide consumers with the tools and information needed to help deter smartphone theft," said Jamie Hastings, vice president of external affairs for CTIA-The Wireless Association, in a written statement. "We've rolled out stolen phones databases, consumer education campaigns, anti-theft apps and features and most recently a 'Smartphone Anti-Theft Voluntary Commitment,' which provides a uniform national technology solution at no cost to the consumer."

The association refused an interview on the topic, sending a written statement instead.

Given the voluntary steps, Hastings said the industry opposes state-by-state legislation mandating kill switches, which threatens the industry's ability to manufacture a uniform phone for distribution nationally.

"State-by-state technology mandates stifle innovation to the ultimate detriment to the consumer," she said in the statement.

Some states scuttled proposed legislation after the industry implemented the voluntary measures. But Tucker said legislation is still needed.

"We didn't feel like it went far enough," Tucker said of the industry's steps, adding that consumers should be able to deactivate their phone from abroad and that a phone's default setting should include the kill switch. "Ultimately, the goal is to protect consumers."

But privacy advocates say that protection could come at a cost to civil rights if law enforcement is given access to the kill switches, or the ability to request a company activate a kill switch on phones in a certain area.

"While it may address theft, you're essentially creating a backdoor system of shutting down the phone that could be abused by law enforcement," said Adi Kamdar, an activist with the San Francisco-based Electronic Frontier Foundation.

In California, the legislation explicitly authorizes law enforcement to use the kill switch under certain conditions to address a public safety threat. The Minnesota law is silent on the question, Laperruque said.

While both Laperruque and Kamdar said they oppose any new legislation, they added that if states are determined to pass bills they should be carefully written.

"One of the main things is the law should be explicit about who has access to this kill switch device," Kamdar said. "The law should be explicit that it is up to the user only to trigger (the kill switch) unless they give law enforcement explicit permission as opposed to the other way around."

Laperruque said pending federal legislation is a good model. It would allow law enforcement access to a kill switch only through a warrant.

In Nevada, bill language won't be available until next year. Tucker said the state is looking to California as a model for the legislation. She isn't sure yet how the Nevada legislation will address the question of law enforcement access to the kill switch.

"The main thrust behind this bill is consumer protection," she said. "That's first and foremost what the issue is. The other issues will be addressed later."

How to keep your smartphone safe:

• Consider your surroundings and use your phone discreetly in public. Never leave it unattended or visible in a vehicle.

• Write down the device's make, model number, serial number and IMEI/MEID numbers, which may be needed on a police report.

• Use a password-protected lock on your phone and install anti-theft software that will enable you to locate and lock the phone remotely. Such software is available through app stores for iPhone and Android phones.

Damon also reports for Reno Gazette-Journal.