California Adopts Smartphone Kill Switch Law

California has just enacted a smartphone kill switch law, which will require all smartphones sold in the state of California as of July, 2015, to have kill switch features enabled as the default settings on the smartphone.

SB 962 requires all smartphones:

manufactured on or after July 1, 2015, and sold in California after that date, include a technological solution at the time of sale, which may consist of software, hardware, or both software and hardware, that, once initiated and successfully communicated to the smartphone, can render inoperable the essential features, as defined, of the smartphone to an unauthorized user when the smartphone is not in the possession of an authorized user.

The bill requires that the technological solution utilized must be able to withstand a hard reset and must prevent reactivation on any wireless network except by an authorized user.  Resold phones will be exempt from this requirement,  as well as any model of smartphone on the market prior to January 1, 2015, which cannot reasonably be re-engineered to support the manufacturer or operating system provider’s technological solution.

The bill imposes a civil penalty of not less than $500 nor more than $2500 for each knowing violation of the bill’s requirements, and enables enforcement by the Attorney General, a district attorney, or any city attorney.

California’s move follows the adoption of similar legislation by Minnesota earlier in the year, as reported by Cnet.  According to Cnet, Minnesota’s law differs from the new California law, however, in that the kill switch feature is not required to be turned on as a default setting when the consumer first sets up the phone.

USA Today reported that the cell industry’s trade group, CTIA-The Wireless Association, has opposed the idea of kill switch legislation, and alleged that this was largely due to the group’s self-interest in perpetuating the lucrative market for cell phone insurance.

Overall, despite industry opposition to the bill, the reaction to this legislation has been positive.  Some media analysts have predicted that California’s move will cause all smartphone makers to adopt the kill switch as a default on all smartphones, given the size of the California market, and that this will all but eliminate smartphone theft in the country, since anyone who steals a smartphone will be left with a dead phone as soon as the owner realizes it is gone.

However, interestingly enough, the Boston Globe took a contrarian view on the legislation, arguing that it was unnecessary and could have “unintended consequences.”  In particular, they raised concerns about a provision in the law that allows governments to deactivate cell phones thereby “micromanaging the tech market.”

As someone who worries about government interference with private markets, I went back to the text of SB 962.   Based on my reading of the bill, the law only references preexisting California law in Section 7908 of the Public Utilities Code and does not actually provide any new government rights to the smartphone marketplace.  So, while the Boston Globe’s point is well-taken about the dangers of government encroachment into the private marketplace, I do not personally see from my reading of the legislation how that is really an issue in this particular case.  Certainly there is an argument that can be made that this law is unnecessary, as smartphone makers were already introducing these safety mechanisms on their own, but obviously the legislation now eliminates the option not to include the features as a default setting on smartphones and it is challenging to come up with an argument as to why this is bad for consumers or the marketplace generally.

All in all, I think California got it “right” this time and applaud the decision to pass the legislation.

Kristie Prinz

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