Amended in Senate April 1, 2013

Senate Bill No. 380

Introduced by Senator Padilla

February 20, 2013

An act begin insert to add Section 7908 to the Public Utilities Code, end insert relating to communications.

LEGISLATIVE COUNSEL’S DIGEST

SB 380, as amended, Padilla. Communications: service interruptions.

Existing law provides that where a law enforcement official has probable cause to believe that a person is holding hostages and is committing a crime, or is barricaded and is resisting apprehension through the use or threatened use of force, the official may order a previously designated telephone corporation security employee to arrange to cut, reroute, or divert telephone lines, as specified.

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This bill would prohibit a governmental entity, as defined, and a provider of communications service, as defined, acting at the request of a governmental entity, from undertaking to interrupt communications service, as defined, for the purpose of protecting public safety or preventing the use of communications service for an illegal purpose, except pursuant to an order signed by a judicial officer, as defined, that makes specified findings. The bill would require the order to clearly describe the specific service to be interrupted with sufficient detail as to customer, cell sector, central office, or geographical area affected and be narrowly tailored to the specific circumstances under which the order is made, and would require that the order not interfere with more communication than is necessary to achieve the purposes of the order. The bill would allow the order to authorize an interruption of service only for as long as is reasonably necessary, require that the interruption cease once the danger that justified the interruption is abated, and require the order to specify a process to immediately serve notice on the communications service provider to cease the interruption. The bill would provide that a good faith reliance upon an order of a judicial officer or a signed statement of intent to apply for a court order, as prescribed, constitutes a complete defense for any communications service provider against any action brought as a result of the interruption of communications service as directed by that order or statement.

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This bill would authorize a governmental entity to interrupt communications service without a court order if it reasonably determines that an extreme emergency situation exists that involves immediate danger of death and there is insufficient time, with due diligence, to first obtain a court order, and it complies with other specified requirements.

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The bill would also find and declare that ensuring that California users of any communications service not have this service interrupted and thereby be deprived of a means to connect with the state’s 911 emergency services or be deprived of a means to engage in constitutionally protected expression, is a matter of statewide concern, and not a municipal affair, as provided.

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This bill would state the intent of the Legislature to enact legislation to prohibit a governmental entity, or a provider of communications service 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 service for an illegal purpose, unless the interruption is authorized by an order signed by a judicial officer, with an exception for an interruption in extreme emergency circumstances.

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Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

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begin insert The Legislature hereby finds and declares all of
the following: end insert

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(a) Preserving the availability and openness of communications
networks is a bedrock principle of federal and state law and
essential to commerce, public safety, and democracy.

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(b) With email, data transfers, videoconferencing, ecommerce,
and myriad online services now a core element of every type of
economic activity, interruption of communications service deprives
individuals and enterprises of the ability to participate in the
modern economy, with significant financial impact even if an
interruption is of short duration.

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(c) Interruption of communications service threatens public
safety by depriving persons of the ability to call 911 and
communicate with family, friends, employers, schools, and others
in an emergency; deprives persons of the ability to receive wireless
emergency alerts; and impairs the ability of first responders to
communicate with each other.

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(d) The right of citizens to freedom of speech under the First
Amendment to the United States Constitution and Section 2 of
Article I of the California Constitution extends to speech through
any technology, from the pamphlets and newspapers of the
Founding Fathers to the emails, blogs, tweets, and texts of modern
day citizens using wireless devices.

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(e) The power of new wireless devices and technologies for
participation in democracy underscores the need to protect First
Amendment rights and ensure that California and the United States
do not take the path of oppressive governments around the world
that routinely shut down the Internet and wireless networks to
silence public protest.

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(f) Interruption of communications service by a government
entity that prevents citizens from communicating can be a “prior
restraint” on speech, which the United States Supreme Court has
held bears a heavy presumption of unconstitutionality and is
justified only in exceptional circumstances.

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(g) The California Supreme Court has held that a customer’s
telephone service may be interrupted only as directed by a court
order with a finding of probable cause that service is being used
for an illegal purpose and that, absent immediate interruption of
service, significant dangers to public health or safety will result.

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(h) In August 2011, the Bay Area Rapid Transportation District
(BART) shut down wireless service for three hours in order to
quash a public protest relating to a fatal shooting by BART police
on a train platform.

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(i) In December 2011, BART adopted a policy authorizing
wireless service shutdowns with no court review and no probable
cause requirement, which prompted a public inquiry by the Federal
Communications Commission.

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(j) With more than 85 percent of American adults owning a
wireless device, and use of wireless services and platforms
expanding every day, protecting these services from interruption
is more important than ever in order to protect commerce, public
safety and First Amendment freedoms that are the core of
democracy.

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begin insert SEC. 2. end insert   

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begin insert Section 7908 is added to the end insert begin insert Public Utilities Code end insert begin insert , to
read: end insert

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begin insert 7908. end insert   

(a) For purposes of this section, the following terms
have the following meanings:

(1) “Communications service” means any communications
service that interconnects with the public switched telephone
network and is required by the Federal Communications
Commission to provide customers with 911 access to emergency
services.

(2) “Governmental entity” means every local government,
including a city, county, city and county, a transit, joint powers,
special, or other district, the state, and every agency, department,
commission, board, bureau, or other political subdivision of the
state, or any authorized agent thereof.

(3) “Interrupt communications service” means to knowingly or
intentionally suspend, disconnect, interrupt, or disrupt
communications service to one or more particular customers or
all customers in a geographical area. “Interrupt communications
service” does not include any interruption of service pursuant to
a customer service agreement, a contract, a tariff, a provider’s
internal practices to protect the security of its networks, Section
2876, 5322, or 5371.6, Section 149 or 7099.10 of the Business and
Professions Code, or subdivision (d) of Section 4576 of the Penal
Code.

(4) “Judicial officer” means a magistrate, judge, justice,
commissioner, referee, or any person appointed by a court to serve
in one of these capacities of any state or federal court located in
this state.

(b) (1) Unless authorized pursuant to subdivision (c), no
governmental entity and no provider of communications service,
acting at the request of a governmental entity, shall interrupt
communications service for the purpose of protecting public safety
or preventing the use of communications service for an illegal
purpose, except pursuant to an order signed by a judicial officer
obtained prior to the interruption. The order shall include all of
the following findings:

(A) That probable cause exists that the service is being or will
be used for an unlawful purpose or to assist in a violation of the
law.

(B) That absent immediate and summary action to interrupt
communications service, serious, direct, immediate, and
irreparable danger to public safety will result.

(C) That the interruption of communications service is narrowly
tailored to prevent unlawful infringement of speech that is
protected by the First Amendment to the United States Constitution
or Section 2 of Article I of the California Constitution, or a
violation of any other rights under federal or state law.

(2) The order shall clearly describe the specific communications
service to be interrupted with sufficient detail as to customer, cell
sector, central office, or geographical area affected, shall be
narrowly tailored to the specific circumstances under which the
order is made, and shall not interfere with more communication
than is necessary to achieve the purposes of the order.

(3) The order shall authorize an interruption of service only for
as long as is reasonably necessary and shall require that the
interruption cease once the danger that justified the interruption
is abated and shall specify a process to immediately serve notice
on the communications service provider to cease the interruption.

(c) (1) Communications service shall not be interrupted without
a court order except pursuant to this subdivision.

(2) If a governmental entity reasonably determines that an
extreme emergency situation exists that involves immediate danger
of death and there is insufficient time, with due diligence, to first
obtain a court order, then the governmental entity may interrupt
communications service without first obtaining a court order as
required by this section, provided that the interruption meets the
grounds for issuance of a court order pursuant to subdivision (b)
and that the entity does all of the following:

(A) Apply for a court order without delay, and in no event, later
than two hours after commencement of an interruption of
communications service.

(B) Provide to the provider of communications service involved
in the service interruption a statement of intent to apply for a court
order signed by an authorized official of the governmental entity.
The statement of intent shall clearly describe the extreme
emergency circumstances, and the specific communications service
to be interrupted with sufficient detail as to the customer, cell
sector, central office, or geographical area affected.

(C) Provide conspicuous notice of the application for a court
order authorizing the communications service interruption on its
Internet Web site without delay, unless the circumstances that
justify an interruption of communications services without first
obtaining a court order justify not providing the notice.

(d) An order to interrupt communications service, or a signed
statement of intent provided pursuant to subdivision (c), that falls
within the federal Emergency Wireless Protocol shall be served
on the California Emergency Management Agency. All other orders
to interrupt communications service or statements of intent shall
be served on the communications service provider’s contact for
receiving requests from law enforcement, including receipt of and
responding to state or federal warrants, orders, or subpoenas.

(e) A provider of communications service that intentionally
interrupts communications service pursuant to this section shall
comply with any rule or notification requirement of the commission
or Federal Communications Commission, or both, and any other
applicable provision or requirement of state or federal law.

(f) Good faith reliance by a communications service provider
upon an order of a judicial officer authorizing the interruption of
communications service pursuant to subdivision (b), or upon a
signed statement of intent to apply for a court order that the
government asserts meets the requirements of subdivision (c), shall
constitute a complete defense for any communications service
provider against any action brought as a result of the interruption
of communications service as directed by that order or statement.

(g) The Legislature finds and declares that ensuring that
California users of any communications service not have that
service interrupted, and thereby be deprived of 911 access to
emergency services or a means to engage in constitutionally
protected expression, is a matter of statewide concern and not a
municipal affair, as that term is used in Section 5 of Article XI of
the California Constitution.

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SECTION 1.  

It is the intent of the Legislature to enact legislation
to prohibit a governmental entity, or a provider of communications
service 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 service for
an illegal purpose, unless the interruption is authorized by an order
signed by a judicial officer, with an exception for an interruption
in extreme emergency circumstances.

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