Director of Communication
The Niskanen Center
The Niskanen Center announces its Support for the ENCRYPT Act
Washington, D.C.– February 10, 2016. This morning, Rep. Ted Lieu and Rep. Blake Farenthold announced the “Ensuring a National Conversation on Rules Affecting Your Private Telecommunications Act of 2016”—or, the ENCRYPT Act. Its aim is to ban individual states from passing legislation mandating data security vulnerabilities or establishing decryption requirements for hardware devices, software, and cloud storage.
“It’s important to note that the bill simply serves as a preemption on state legislatures,” said Ryan Hagemann, the Niskanen Center’s technology and civil liberties policy analyst. “It doesn’t address the ongoing discussion surrounding encryption and law enforcement’s concerns over ‘going dark.’ Rather, Rep. Lieu’s bill would serve to help refocus the conversation where it belongs: at the federal level.”
The bill would prohibit states and political subdivisions thereof from mandating or requesting that a technology firm alter its product’s security functions to permit surveillance of the user or retain “the ability to decrypt … information that is encrypted,” whether the data is stored on a smartphone or in the cloud. This push for a federal preemption comes on the heels of constitutionally dubious legislation proposed in the states of California and New York.
“Introducing further complexity by permitting a schizophrenic patchwork of encryption-based legal regimes amongst the states is not a good policy prescription to this issue,” Hagemann said. “Rather than further complicating an already technical and multifaceted debate, Congress should assert its jurisdiction. If it doesn’t, the privacy and civil liberties of American citizens could be at risk in fifty separate states, to say nothing of the potential economic harm of a balkanized domestic encryption market. Congress would do well to take the ENCRYPT Act under serious consideration.”
The Niskanen Center is a libertarian 501(c)(3) advocacy organization that was established in 2014 that works to change public policy through direct engagement in the policymaking process.