BILL ANALYSIS Ó SB 1160 Page 1 Date of Hearing: June 25, 2012 ASSEMBLY COMMITTEE ON UTILITIES AND COMMERCE Steven Bradford, Chair SB 1160 (Padilla) - As Amended: June 19, 2012 SENATE VOTE : 32-0 SUBJECT : Communications: Service interruption. SUMMARY : Prohibits a government entity, and a provider of communication service acting at the request of a government entity, from intentionally interrupting communication service for the purpose of protecting public safety or preventing use of the service for an illegal purpose except pursuant to a court order based on a finding of probable cause. EXISTING LAW : 1)Makes it a misdemeanor for an agent, operator, or employee of any telegraph or telephone office to willfully refuse to transmit a message unless the customer bill is not paid or the message encourages treason or other unlawful acts or facilitates escape of a criminal. 2)Authorizes law enforcement to order a cut to a telephone line to prevent communications where there is probable cause that a person is holding hostages, committing a crime, or resisting arrest through use of force. 3)Decisions of the Federal Communications Commission (FCC) require specified providers of communications service, including landline, wireless, and certain Internet-based services, to provide customers 911 access to emergency services. FISCAL EFFECT : Unknown. COMMENTS : According to the author, the purpose of this bill is to protect public safety by ensuring 911 access to emergency services and to preserve a free and open communications system that is critical to democracy. 1)Background : For many decades landline telephone service was the only means of SB 1160 Page 2 communication and calling 911 for emergency assistance. The evolution of technology has brought to the forefront a greater use of mobile wireless and Voice over Internet Protocol (VoIP) services as a primary means of communication for voice calls, texting, email, Internet access, and other uses, including access to 911. It has been estimated by the FCC that 70% of all 911 calls now originate from wireless phones. In California Public Utilities Commission (PUC) Decision No. 71797 (1966), the PUC established a procedure that must be followed before "any communications utility operating under the jurisdiction of the commission" may refuse service to an applicant, or discontinue service to a subscriber, based on an assertion by law enforcement that the service is or will be used for unlawful purposes. This is commonly known as "Tariff Rule 31." Importantly, this tariff rule applies only to refusals of service/disconnections requested by law enforcement; it doesn't apply to company-initiated disconnections for fraud or other illegal activity made pursuant to applicable tariffs, customer contracts, and internal practices to prevent network harm. The PUC implemented Tariff Rule 31 following the California Supreme Court's 1966 decision in Sokol v. Public Utilities Commission (1966) 65 Cal.2d 247, which struck down a prior PUC rule on this matter. The Sokol case held that "ÝWhatever] new procedure is hereafter devised," it "must at a minimum require that the police obtain prior authorization to secure the termination of service by satisfying an impartial tribunal that they have probable cause to act, in a manner reasonably comparable to a proceeding before a magistrate to obtain a search warrant. In addition, after service is terminated the subscriber must be promptly afforded the opportunity to challenge the allegations of the police and to secure restoration of the service." Sokol, 65 Cal.2d at p. 256. Following Sokol, the PUC undertook further proceedings to modify the rule consistent with this standard. The PUC was then sued again by an aggrieved person asserting "extensive" constitutional errors including violation of free speech, due process, and unlawful taking of property. In Goldin v. Public Utilities Com., 23 Cal. 3d 638 (1979), the California Supreme Court held that Tariff Rule 31 needed to "be modified in certain respects in order to insure the full future protection of constitutional rights to due process of law." Specifically, Goldin required the PUC to modify the rule to provide that the SB 1160 Page 3 magistrate must find that there is probable cause to believe "not only that the subject telephone facilities have been or are to be used in the commission or facilitation of illegal acts, but that the character of such acts is such that, absent immediate and summary action in the premises, significant dangers to public health, safety, or welfare will result." Goldin, 23 Cal. 3d at 664-65. Otherwise, Goldin found Tariff Rule 31 to be generally consistent with the requirements of Sokol decision and the requirements of applicable principles of state and federal constitutional law. Goldin, 23 Cal. 3d at 670. The PUC amended Tariff Rule 31 to implement the modifications required under Goldin. See Decision 91188, adopted January 8, 1980. 1)BART goes too far? : In August 2011, officials of the Bay Area Rapid Transit district temporarily disabled wireless service in several stations to interfere with anticipated political demonstrations protesting the fatal shooting of a passenger by BART police. Thousands of BART commuters lost the ability to utilize wireless services in the affected stations for the purpose of public safety. In December 2011, the BART board of directors adopted the nation's first policy specifying when mobile wireless service can be shut down. The new policy allows BART to interrupt cell service if BART officials determine there is strong evidence of imminent unlawful activity that threatens public safety, substantial disruption of public transit services, or destruction of BART property, among other considerations. The policy does not require any court or other review of BART officials' determination that a shutdown is justified. 2)FCC action : The FCC is dedicated to preserving the availability and openness of communications and networks. Wireless communications serve vital free expression interests and are critical to our nation's economy. On March 1, 2011, the FCC issued a Public Notice asking for public comment on many issues related to intentional interruptions of wireless service by, or at the request of, a government authority for the purpose of ensuring public safety. The FCC requested comments on the legal and policy constraints on service interruption posed by the First Amendment, federal law governing communications, and other provisions of federal and state law. The FCC notes that "we are concerned that there has been insufficient discussion, analysis, and consideration of SB 1160 Page 4 the questions raised by intentional interruptions." The FCC stated that public input will inform whether- and if so, what - policy guidance may be appropriate regarding wireless service interruptions. 3)Regulatory oversight and public safety : The PUC has the broad authority to regulate utility safety pursuant to the California Constitution as well as the Public Utilities Code. SB 1160 does not intend to adversely impact the PUC's safety authority. It does not apply to service disconnection or interruption authorized by law or regulation for specified purposes such as for failure of a subscriber to pay a bill, maintenance and repair, as directed by the PUC because of fraudulent business activity or misuse of automated dialing-announcing devices, among others. The author contends that this bill aims to be consistent with the FCC's proceeding which is seeking to develop federal guidance on government-initiated shutdown of wireless service. Moreover, this bill seeks to ensure public safety by focusing on providers of communication service that are required to provide their customers 911 access to emergency service. Public opinion is split on whether the government and law enforcement should have unchecked authority to initiate a localized or citywide wireless shutdown for public safety purposes. Supporters of BART's action to interrupt wireless service recognize that in certain emergency situations a service disruption may be warranted to prevent or stop a life-threatening emergency. Critics disagree with BART's actions and claim that government directed wireless shutdowns would infringe upon the First Amendment rights to protected speech and impose unconstitutional prior restraints on speech. SB 1160 would preempt a governmental entity, provider of communications service, or any official acting at the request of a governmental entity from interrupting communications service for the purpose of protecting public safety or preventing the use of communications for an illegal purpose unless a signed court order is obtained. It also makes current law technology-neutral to apply to any communications service that interconnects with the public switched telecommunications network and is required by the FCC to provide users 911 access to emergency services. The other provisions in this bill relating to the First Amendment and exigent circumstances are not germane to the SB 1160 Page 5 jurisdiction of this committee and will be vetted in another policy committee. REGISTERED SUPPORT / OPPOSITION : Support American Civil Liberties Union (ACLU) American Federation of State, County and Municipal Employees (AFSCME) California Cable & Telecommunications Association (CCTA) California Chapter of the National Emergency Number Association (CALNENA) Opposition None on file. Analysis Prepared by : DaVina Flemings / U. & C. / (916) 319-2083