California Governor Jerry Brown just signed a bill that requires all smartphones sold in California to come with mandatory "kill switches." A few weeks ago, I thought the bill was a seemingly harmless piece of legislation that might decrease the number of smartphones stolen every year. I even wrote a blog post in support of the bill. I've since changed my mind.
The events in Ferguson, Mo. that followed the police shooting death of 18-year-old Michael Brown made me rethink my view.
What's the connection between Ferguson and kill switches? Let me explain.
As the executive director of CALinnovates, I advocate for the tech creators and users in California. When there's legislation that would either help or harm my members, I make our voices heard in Washington and Sacramento. SB 962, the bill that mandates kill switches, seemed like a no-brainer at the time. Introduced by San Francisco-based State Senator Mark Leno, the bill requires smartphone makers to include technology in every phone sold in California that makes it possible to disable the phone remotely. If a thief steals your phone, you'll be able to easily lock it down and the bad guy won't gain access to your email, credit cards or passwords. As I wrote at the time, "The California law, while state specific, sends a strong message to would-be thieves... that curtailing smartphone theft is a priority."
As California goes, so goes the rest of the country. It's absurd to think that smartphone makers will only include the technology in phones sold in California -- so now, hardware manufacturers will essentially have to make the technology available on all future smartphones. The California bill states that users must be given the option to activate (or not) the kill switch technology. Similar bills in Minnesota, New York, Illinois and Rhode Island don't offer users an option to make the kill switch inactive.
There's no doubt that mandatory kill switches will ease cell phone theft. As stolen phones lose their value on the secondary market and no private information can be gleaned, thieves will cut back on swiping phones. Even companies like Apple and Samsung support (or at least don't oppose) the new law.
So why do I now oppose it?
Ferguson.
Like the rest of the nation, I watched in horror over the last two weeks as protestors and police clashed in the St. Louis suburb where an unarmed teen, Michael Brown, was killed by police. Yes, there were some protestors who acted criminally and agitated for violence. But for the most part, the protests were amazingly peaceful. Images of men, women and children walking towards police with their hands up have left a powerful impression on those of us viewing the situation from afar.
It's easy to understand why the people of Ferguson - where 63 percent of the community is black but make up 92 percent of all police arrests - are fed up. It's harder to understand the reaction from law enforcement. Using military tactics including tear gas, armored trucks and assault rifles, police helped turn Ferguson into what looked like a war zone.
Journalists, who have every right to cover police actions, have been harassed and 11 were arrested. Police demanded reporters turn off their phones when they were lawfully trying to cover events as they unfolded. The situation got so bad that 48 news organizations signed a letter to the local and state police departments demanding they stop harassing journalists who were just doing their jobs. Social media via mobile phones is what pushed Ferguson onto the front page in the first place. CNN was still doing Lauren Bacall tributes when Twitter exploded with #Ferguson as people tweeted from the scene.
The government's quick willingness to shut down communications is what got me (and others) thinking about the kill switch. It makes it very easy for police to simply shut down all cell phones using the technology to stifle coverage and communication - basic First Amendment rights - in Ferguson.
And this isn't the first time we've seen police jump to shutting down communications in the face of lawful protests. In 2011, protestors were planning to stop subway trains in San Francisco after police there shot and killed Charles Blair Hill, a mentally ill homeless man who was armed with a knife. BART officials later admitted that they shut down the train system's underground cell phone network when the protest was scheduled to take place in order to stop people from organizing.
In the wake of that incident, Gov. Brown signed a bill last year requiring a court order before the government can shut down communications. The new California bill acknowledges that the law enforcement needs to abide by these rules before using the kill switch. To obtain a court order there has to be probable cause that mobile service is being used for unlawful purposes and that without shutting down communications, there would be an immediate threat to public safety. The communication interruption has to be narrowly tailored and it can't last longer than necessary.
But if the police decide that there is a real risk of "death or great bodily injury" and there isn't time for a court order, then a unilateral communications shutdown is allowed.
The intention here is clearly to stop communications between terrorists who are plotting an act of violence. But intentions can go wrong. I can see how police in a situation like the one we watched in Ferguson could have argued that there was enough danger to warrant shutting down cell phones.
It's too easy for the government to curtail our civil rights using the kill switch, even if that's not what the state legislature had in mind. Governor Brown now needs to make sure the new law is used only for the right reasons - to deter theft. Hopefully, we'll never see the police use it to suppress free speech.