BY NICK EVANS
Ohio lawmakers have some new ideas for how you use your phone. No, it doesn’t have anything to do with TikTok, and it doesn’t change new texting while driving laws. Instead, Rep. Haraz Ghanbari, R-Perrysburg, wants to mandate heightened security measures for text messaging. The problem is it might run afoul of federal law.
Safe texting
At its first committee hearing last week, Ghanbari explained his Safe and Reliable Texting Act would require messages be encrypted, photos and videos maintain their original quality, and allow for users to get real-time notification that a recipient has read a message or is typing a reply.
“These are not revolutionary,” Ghanbari said of the features, but they’re only available in certain circumstances. The bedrock system, Short Message Service or SMS, has been around for more than 30 years. And while it’s proved remarkably durable, Ghanbari argued, it leaves a lot to be desired when it comes to security.
“What’s written in an SMS text is about as private and secure as what’s written on a postcard,” he said.
Individual companies have taken steps to improve their own platforms. WhatsApp bragged about their own encryption in a commercial comparing SMS to carrier pigeons. Apple has made similar claims about its iMessage service. But Ghanbari explained those efforts have largely been siloed.
“I would be willing to wager, colleagues, that you’ve all run into this at some point or another,” Ghanbari told the committee. “That’s because anytime texts are exchanged between platforms such as iPhones and phones using the Android operating system, they’re sent via SMS.”
“That’s what’s going on when your conversation has both green and blue bubbles,” he added.
Ghanbari noted Apple has made public commitments to adopt newer messaging standards that would resolve some of the issues in communication between iPhone and Android. But until they roll out those updates, it’s just “lip service,” he said.
The stakes, Ghanbari argued, extend beyond privacy. Law enforcement, like everyone else, relies heavily on texting, and high-quality photos and video could be important in an investigation. He also proposed hypothetical circumstances like a kidnapping or active shooter situation in which a victim may not be able to communicate audibly. Currently, Ohio’s new 911 text-only system operates on SMS, and while Ghanbari argued it needs to get upgraded, those changes aren’t currently part of his bill.
Can he do that?
In committee, some lawmakers raised doubts about whether Ohio can impose those kinds of requirements as well as how they’d be implemented. Rep. Munira Abdullahi, D-Columbus, asked what would happen if an Ohioan texts someone outside the state. Ghanbari simply reiterated that users can already communicate between platforms.
Abdullahi also asked how Ohio could enforce the provisions at the state level.
“Some folks have said, hey, this is something that needs to be handled at the federal level, right?” Ghanbari acknowledged. “The federal level isn’t moving on this right now. So, we want to be a leader in that space.”
Because the proposal would impose restrictions on companies doing business across state lines, it might violate the commerce clause of the U.S. Constitution. That provision reserves the regulation of interstate commerce to the federal government.
Ghanbari’s bill might also violate federal law because the Communications Act preempts state and local governments from regulating the “entry of or rates charged” by a mobile service. That act does allow states to regulate terms and conditions, but it’s not clear in which bucket a court would place Ghanbari’s changes.
He got a bit of pushback as well from Rep. Riordan McClain, R-Upper Sanduksy, who asked “how is this not meddling in the marketplace?”
Picking up on the idea of text 911 services, he argued, “from my perspective, that’s a marketing tactic that I could use as a company to say, hey, use our service. We integrate perfectly with next gen 911. My competitor uses SMS, it doesn’t.”
“I think that this may be a step too far,” McClain added.
Ghanbari argued back that the bill doesn’t dictate how a company presents itself to consumers — instead it establishes baseline requirements with an eye toward safety. He added that imposing a standard will help ensure every user is protected.
“I don’t want someone’s ability to purchase the newest iPhone model whatever, the newest Android model whatever, to define what their ability is to be protected, and to be able to respond in an emergency and also to safeguard what’s coming in and out of their phone.”
