California Enacts Smartphone Kill Switch Law to Promote Data Security


This week California enacted into law Senate Bill 962, which requires a “kill switch” on all smartphones that would render the device inoperable. The law applies to all smartphones manufactured after July 1, 2015 and sold in the state, but exempts other mobile devices such as tablets and smartwatches.

While Minnesota passed a similar law in June, its statute (as well as comparable legislation pending in New York, Illinois and Rhode Island) does not require that a kill switch is enabled as the default setting as mandated under S.B. 962. California has been a leader in privacy and data security legislation and has the nation’s largest economy and population of smartphone users. As a result, the law will have a sweeping impact since it is unlikely that cell phone manufacturers will limit the kill switch feature to those phones sold in California and Minnesota. The feature has enough supporters that similar federal legislation, “The Smartphone Prevention Act,” was introduced to the U.S. Senate in February.

Apple iPhones with the iOS 7 operating system already include an “Activation Lock” feature that is largely compliant with S.B. 962 except for the fact that it is not a default setting. Google and Microsoft are expected to add kill switches in future versions of their operating systems.

California’s law and the growing popularity of kill switches are in response to the surge in smartphone thefts over the last year. A Consumer Reports survey indicated that approximately 3.1 million Americans were victims of smartphone thefts in 2013, up from 1.6 million in 2012. Smartphone thefts are particularly prevalent in the tech-centric Bay Area where a large percent of the population carry mobile devices. Smartphones pose a huge liability for data security since consumers store everything from credit card numbers to passwords to accounts and websites, and even Social Security numbers.

The law is not without its detractors. CTIA, the trade association for the telecommunications industry, initially opposed the law out of concern that a patchwork of state-specific laws would increase costs without providing a comprehensive solution, while inhibiting competition and innovation. Opponents have pointed to the availability of other technological solutions such as remote wipe functionality. The Electronic Frontier Foundation (“EFF”) remains opposed due to concerns related to potential civil rights abuses and the possibility of criminal exploitation. EFF representatives have expressed concerns that a kill switch could be used by perpetrators of domestic violence and stalker crimes to prevent the victims from reporting the abuse, and would create a means for law enforcement to disable smartphones of protestors, akin to when cell phone access on BART subways was shut down in 2011 in response to a planned protest by commuters. Another worry is that hackers could potentially access the kill switch.

Retailers could incur a civil penalty ranging from $500 to $2,500 per smartphone sold in violation of the law.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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