Amended in Senate May 14, 2013

Amended in Senate April 23, 2013

Amended in Senate April 1, 2013

Senate BillNo. 380


Introduced by Senator Padilla

February 20, 2013


An act to addbegin insert, repeal, and addend insert Section 7908begin delete toend deletebegin insert ofend insert the Public Utilities Code, 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.

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.

This bill would authorize a governmental entitybegin insert, until January 1, 2016,end insert 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.

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.

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

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

P2    1

SECTION 1.  

The Legislature hereby finds and declares all of
2the following:

3(a) Preserving the availability and openness of communications
4networks is a bedrock principle of federal and state law and
5essential to commerce, public safety, and democracy.

6(b) With email, data transfers, videoconferencing, e-commerce,
7and myriad online services now a core element of every type of
8economic activity, interruption of communications service deprives
9individuals and enterprises of the ability to participate in the
10modern economy, with significant financial impact even if an
11interruption is of short duration.

P3    1(c) Interruption of communications service threatens public
2safety by depriving persons of the ability to call 911 and
3communicate with family, friends, employers, schools, and others
4in an emergency; deprives persons of the ability to receive wireless
5emergency alerts; and impairs the ability of first responders to
6communicate with each other.

7(d) The right of citizens to freedom of speech under the First
8Amendment to the United States Constitution and Section 2 of
9Article I of the California Constitution extends to speech through
10any technology, from the pamphlets and newspapers of the
11Founding Fathers to the emails, blogs, tweets, and texts of modern
12day citizens using wireless devices.

13(e) The power of new wireless devices and technologies for
14participation in democracy underscores the need to protect First
15Amendment rights and ensure that California and the United States
16do not take the path of oppressive governments around the world
17that routinely shut down the Internet and wireless networks to
18silence public protest.

19(f) Interruption of communications service by a government
20entity that prevents citizens from communicating can be a “prior
21restraint” on speech, which the United States Supreme Court has
22held bears a heavy presumption of unconstitutionality and is
23justified only in exceptional circumstances.

begin delete

24(g) The California Supreme Court has held that a customer’s
25telephone service may be interrupted only as directed by a court
26order with a finding of probable cause that service is being used
27for an illegal purpose and that, absent immediate interruption of
28service, significant dangers to public health or safety will result.

end delete
begin insert

29(g) The California Supreme Court, in Sokol v. Public Utilities
30Commission (1966) 65 Cal.2d 247, 265, articulated the standard
31that any future commission rule for discontinuation of telephone
32services used for illegal purposes must at a minimum require that
33police obtain prior authorization to secure the termination of
34service by satisfying an impartial tribunal that they have probable
35cause to act, in a manner reasonably comparable to a proceeding
36before a magistrate to obtain a search warrant.

end insert

37(h) In August 2011, the Bay Area Rapid Transit District (BART)
38shut down wireless service for three hours in order to quash a
39public protest relating to a fatal shooting by BART police on a
40train platform.

P4    1(i) In December 2011, BART adopted a policy authorizing
2wireless service shutdowns with no court review and no probable
3cause requirement, which prompted a public inquiry by the Federal
4Communications Commission.

5(j) With more than 85 percent of American adults owning a
6wireless device, and use of wireless services and platforms
7expanding every day, protecting these services from interruption
8is more important than ever in order to protect commerce, public
9safety, and First Amendment freedoms that are the core of
10democracy.

11

SEC. 2.  

Section 7908 is added to the Public Utilities Code, to
12read:

13

7908.  

(a) For purposes of this section, the following terms
14have the following meanings:

15(1) “Communications service” means any communications
16service that interconnects with the public switched telephone
17network and is required by the Federal Communications
18Commission to provide customers with 911 access to emergency
19services.

20(2) “Governmental entity” means every local government,
21including a city, county, city and county, a transit, joint powers,
22special, or other district, the state, and every agency, department,
23commission, board, bureau, or other political subdivision of the
24state, or any authorized agent thereof.

25(3) “Interrupt communications service” means to knowingly or
26intentionally suspend, disconnect, interrupt, or disrupt
27communications service to one or more particular customers or
28all customers in a geographical area. “Interrupt communications
29service” does not include any interruption of service pursuant to
30a customer service agreement, a contract, a tariff, a provider’s
31internal practices to protect the security of its networks, Section
322876, 5322, or 5371.6begin insert of this codeend insert, Section 149 or 7099.10 of the
33Business and Professions Code, subdivision (d) of Section 4576
34of the Penal Code, or an order to cut, reroute, or divert a landline
35being used for telephone communication by a person in a hostage
36or barricade situation pursuant to Section 7907.

37(4) “Judicial officer” means a magistrate, judge, justice,
38commissioner, referee, or any person appointed by a court to serve
39in one of these capacities of any state or federal court located in
40this state.

P5    1(b) (1) Unless authorized pursuant to subdivision (c), no
2governmental entity and no provider of communications service,
3acting at the request of a governmental entity, shall interrupt
4communications service for the purpose of protecting public safety
5or preventing the use of communications service for an illegal
6purpose, except pursuant to an order signed by a judicial officer
7obtained prior to the interruption. The order shall include all of
8the following findings:

9(A) That probable cause exists that the service is being or will
10be used for an unlawful purpose or to assist in a violation of the
11law.

12(B) That absent immediate and summary action to interrupt
13communications service, serious, direct, and immediate danger to
14public safety, health, or welfare will result.

15(C) That the interruption of communications service is narrowly
16tailored to prevent unlawful infringement of speech that is protected
17by the First Amendment to the United States Constitution or
18Section 2 of Article I of the California Constitution, or a violation
19of any other rights under federal or state law.

20(2) The order shall clearly describe the specific communications
21service to be interrupted with sufficient detail as to customer, cell
22sector, central office, or geographical area affected, shall be
23narrowly tailored to the specific circumstances under which the
24order is made, and shall not interfere with more communication
25than is necessary to achieve the purposes of the order.

26(3) The order shall authorize an interruption of service only for
27as long as is reasonably necessary and shall require that the
28interruption cease once the danger that justified the interruption
29is abated and shall specify a process to immediately serve notice
30on the communications service provider to cease the interruption.

31(c) (1) Communications service shall not be interrupted without
32a court order except pursuant to this subdivision.

33(2) If a governmental entity reasonably determines that an
34extreme emergency situation exists that involves immediate danger
35of death and there is insufficient time, with due diligence, to first
36obtain a court order, then the governmental entity may interrupt
37communications service without first obtaining a court order as
38required by this section, provided that the interruption meets the
39grounds for issuance of a court order pursuant to subdivision (b)
40and that the entity does all of the following:

P6    1(A) Apply for a court order without delay, and in nobegin delete event,end deletebegin insert eventend insert
2 later than two hours after commencement of an interruption of
3communications service.

4(B) Provide to the provider of communications service involved
5in the service interruption a statement of intent to apply for a court
6order signed by an authorized official of the governmental entity.
7The statement of intent shall clearly describe the extreme
8emergency circumstances, and the specific communications service
9to be interrupted with sufficient detail as to the customer, cell
10sector, central office, or geographical area affected.

11(C) Provide conspicuous notice of the application for a court
12order authorizing the communications service interruption on its
13Internet Web site without delay, unless the circumstances that
14justify an interruption of communications service without first
15obtaining a court order justify not providing the notice.

16(d) An order to interrupt communications service, or a signed
17statement of intent provided pursuant to subdivision (c), that falls
18within the federal Emergency Wireless Protocol shall be served
19on the California Emergency Management Agency. All other orders
20to interrupt communications service or statements of intent shall
21be served on the communications service provider’s contact for
22receiving requests from law enforcement, including receipt of and
23responding to state or federal warrants, orders, or subpoenas.

24(e) A provider of communications service that intentionally
25interrupts communications service pursuant to this section shall
26comply with any rule or notification requirement of the commission
27or Federal Communications Commission, or both, and any other
28applicable provision or requirement of state or federal law.

29(f) Good faith reliance by a communications service provider
30upon an order of a judicial officer authorizing the interruption of
31communications service pursuant to subdivision (b), or upon a
32signed statement of intent to apply for a court order that the
33government asserts meets the requirements of subdivision (c), shall
34constitute a complete defense for any communications service
35provider against any action brought as a result of the interruption
36of communications service as directed by that order or statement.

37(g) The Legislature finds and declares that ensuring that
38California users of any communications service not have that
39service interrupted, and thereby be deprived of 911 access to
40emergency services or a means to engage in constitutionally
P7    1protected expression, is a matter of statewide concern and not a
2municipal affair, as that term is used in Section 5 of Article XI of
3the California Constitution.

begin insert

4(h) This section shall remain in effect only until January 1, 2016,
5and as of that date is repealed, unless a later enacted statute, that
6is enacted before January 1, 2016, deletes or extends that date.

end insert
7begin insert

begin insertSEC. 3.end insert  

end insert

begin insertSection 7908 is added to the end insertbegin insertPublic Utilities Codeend insertbegin insert, to
8read:end insert

begin insert
9

begin insert7908.end insert  

(a) For purposes of this section, the following terms
10have the following meanings:

11(1) “Communications service” means any communications
12service that interconnects with the public switched telephone
13network and is required by the Federal Communications
14Commission to provide customers with 911 access to emergency
15services.

16(2) “Governmental entity” means every local government,
17including a city, county, city and county, a transit, joint powers,
18special, or other district, the state, and every agency, department,
19commission, board, bureau, or other political subdivision of the
20state, or any authorized agent thereof.

21(3) “Interrupt communications service” means to knowingly or
22intentionally suspend, disconnect, interrupt, or disrupt
23communications service to one or more particular customers or
24all customers in a geographical area. “Interrupt communications
25service” does not include any interruption of service pursuant to
26a customer service agreement, a contract, a tariff, a provider’s
27internal practices to protect the security of its networks, Section
282876, 5322, or 5371.6 of this code, Section 149 or 7099.10 of the
29Business and Professions Code, subdivision (d) of Section 4576
30of the Penal Code, or an order to cut, reroute, or divert a landline
31being used for telephone communication by a person in a hostage
32or barricade situation pursuant to Section 7907.

33(4) “Judicial officer” means a magistrate, judge, justice,
34commissioner, referee, or any person appointed by a court to serve
35in one of these capacities of any state or federal court located in
36this state.

37(b) (1) No governmental entity and no provider of
38communications service, acting at the request of a governmental
39entity, shall interrupt communications service for the purpose of
40protecting public safety or preventing the use of communications
P8    1service for an illegal purpose, except pursuant to an order signed
2by a judicial officer obtained prior to the interruption. The order
3shall include all of the following findings:

4(A) That probable cause exists that the service is being or will
5be used for an unlawful purpose or to assist in a violation of the
6law.

7(B) That absent immediate and summary action to interrupt
8 communications service, serious, direct, and immediate danger to
9public safety, health, or welfare will result.

10(C) That the interruption of communications service is narrowly
11tailored to prevent unlawful infringement of speech that is
12protected by the First Amendment to the United States Constitution
13or Section 2 of Article I of the California Constitution, or a
14violation of any other rights under federal or state law.

15(2) The order shall clearly describe the specific communications
16service to be interrupted with sufficient detail as to customer, cell
17sector, central office, or geographical area affected, shall be
18narrowly tailored to the specific circumstances under which the
19order is made, and shall not interfere with more communication
20than is necessary to achieve the purposes of the order.

21(3) The order shall authorize an interruption of service only for
22as long as is reasonably necessary and shall require that the
23interruption cease once the danger that justified the interruption
24is abated and shall specify a process to immediately serve notice
25on the communications service provider to cease the interruption.

26(c) An order to interrupt communications service that falls
27within the federal Emergency Wireless Protocol shall be served
28on the California Emergency Management Agency. All other orders
29to interrupt communications service or statements of intent shall
30be served on the communications service provider’s contact for
31receiving requests from law enforcement, including receipt of and
32responding to state or federal warrants, orders, or subpoenas.

33(d) A provider of communications service that intentionally
34interrupts communications service pursuant to this section shall
35comply with any rule or notification requirement of the commission
36or Federal Communications Commission, or both, and any other
37applicable provision or requirement of state or federal law.

38(e) Good faith reliance by a communications service provider
39upon an order of a judicial officer authorizing the interruption of
40communications service pursuant to subdivision (b) shall constitute
P9    1a complete defense for any communications service provider
2against any action brought as a result of the interruption of
3communications service as directed by that order or statement.

4(f) The Legislature finds and declares that ensuring that
5California users of any communications service not have that
6 service interrupted, and thereby be deprived of 911 access to
7emergency services or a means to engage in constitutionally
8protected expression, is a matter of statewide concern and not a
9municipal affair, as that term is used in Section 5 of Article XI of
10the California Constitution.

11(g) This section shall become operative on January 1, 2016.

end insert


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