WASHINGTON D.C. —­­ Today, Representatives Ted Lieu (D-CA) and Blake Farenthold (R-TX) introduced the ENCRYPT Act, which would ban states and localities from crippling encryption in consumer Internet services and devices. The bill would invalidate potential action by some states, including California and New York, that would ban encrypted smartphones from being sold.

Regardless of what you think of encryption, it should absolutely be a federal issue,” said Berin Szoka. “Congress should, indeed, be careful about preempting state laws, but the Internet is an inherently interstate medium. There’s just no reason that states or localities should have any role in regulating Internet services or devices — the way that California, in particular, has been able to impose its regulatory agenda on other states on a host of Internet regulation issues.”

Having a national dialogue on encryption is a far better alternative than the type of knee-jerk reaction that brought us the PATRIOT Act after 9/11,” said Tom Struble, Policy Counsel at TechFreedom. “Congress is already moving towards establishing a commission to study encryption and digital security issues. But if states start banning encryption on their own, they’ll derail the national discussion and leave tech companies at the mercy of a single state.”

The ENCRYPT Act would keep states out of the encryption business, but it still leaves the door open for the FCC to ban encryption,” concluded Szoka. “CALEA requires telecommunications services to be wiretap-ready, which doesn’t apply to services like WhatsApp and Snapchat — for now. But the FCC’s Open Internet Order makes it easy for the agency to redefine messaging apps as ‘telecommunications services,’ thus roping them into CALEA and effectively banning encryption. Congress must take that option off the table permanently by clarifying that broadband is not a telecommunications service under either the Communications Act or CALEA.”


We can be reached for comment at media@techfreedom.org. See more of our work on encryption, including:

  • “White House Support for Strong Encryption Could Discourage Digital Protectionism,” a statement from TechFreedom
  • “We the People” petition asking the President to publicly affirm support for strong encryption
  • “Don’t Cripple Encryption, TechFreedom Urges Congress—and the FCC,” a statement from TechFreedom
  • Coalition Letter from over 150 privacy organizations, tech companies, trade associations, and individual security experts urging President Obama to support Americans’ right to use strong encryption