Login | April 27, 2024
Bill designed to increase text messaging security
KEITH ARNOLD
Legal News Reporter
Published: March 27, 2024
A northwest Ohio lawmaker is sounding the alarm bell for security concerns surrounding texting via Short Message Service, commonly known as SMS.
Perrysburg Rep. Haraz Ghanbari has introduced legislation he’s dubbed the Safe and Reliable Texting Act, which calls for implementation of certain security protections and the use of certain communication networks for the United States Phone Number Linked Mobile Texting Services.
“The thinking behind House Bill 357 is simple,” the Republican lawmaker said during a Technology and Innovation Committee hearing in the Ohio House of Representatives. “One of our core communication tools, text messaging, is woefully out of date. The failure to update and improve it has put all Ohioans, whether they have an iPhone or a device that uses the Android operating system, unnecessarily at risk.”
The bill would require the federal Phone Number Linked Mobile Texting Service to implement the proposed security protections––encryption, preservation of image and video quality and real-time notification of message views and responses––and to use a network that supports the security protections within six months of the state public director’s adoption of rules.
Ghanbari said the security protections the bill calls for are not revolutionary.
“Some, if not all, are standard in other communication tools we use every day, like email, iMessage and WhatsApp,” he added.
He said texting in the United States is more popular than ever with more than two trillion texts sent annually––about 16 million per minute.
HB 357 would permit the state attorney general to bring a civil action in a court of common pleas against any person or entity to enforce the bill’s requirements, analysis of the bill provided.
Additionally, the measure would require a court to enjoin and impose a forfeiture of $10 per user per month on a defendant found by the court to be violation of the bill’s requirements.
Ohio Legislative Service Commission analysis reasoned that HB 357 may be subject to challenge under the Dormant Commerce Clause as the bill’s requirements could impact interstate commerce through application to all text capable telephone numbers.
“The U.S. Constitution grants Congress the power to regulate commerce among the several states,” attorney Reid Fleeson wrote for the commission. “The U.S. Supreme Court has held that the Commerce Clause also contains a further negative command that prohibits certain state economic regulations even when Congress has failed to legislate on the subject, which is known as the Dormant Commerce Clause.”
Fleeson wrote that state laws that are not anti-discriminatory, however, are not prohibited merely for having the practical effect of controlling commerce outside of the state.
“Yet, it has been argued that there is still the potential for a state law that does not discriminate against out-of-state commerce to nonetheless be invalidated under the doctrine if the law imposes a substantial burden on interstate commerce,” he continued. “It would be up to a court to determine if the bill’s requirements conflict with the Dormant Commerce Clause.”
“It’s easy to put this (issue) on the backburner, if it ain’t broke, don't fix it,”Ghanbari said. “The problem is texting is broken. It falls short on a laundry list of safety criteria that we expect from messaging today.”
Fleeson noted HB 357 also could be preempted by federal law.
“A provision of the federal Communications Act states that ‘no state or local government shall have any authority to regulate the entry of or rates charged by any commercial mobile service or any private mobile service,’” he wrote.
If the bill, however, is intended to regulate other terms and conditions of commercial mobile services, the bill may survive review, Fleeson concluded.
HB 357 awaits further consideration by the committee.
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