Amended in Assembly August 22, 2013

Amended in Assembly August 6, 2013

Amended in Senate May 14, 2013

Amended in Senate April 23, 2013

Amended in Senate April 1, 2013

Senate Bill No. 380

Introduced by Senator Padilla

begin insert

(Coauthor: Assembly Member Gatto)

end insert

February 20, 2013

An act to add and repeal Section 7908 of 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 begin delete bill, until January 1, 2020, end delete begin insert bill end insert 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 begin insert communications end insert 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 authorize a governmental begin delete entity, until January 1, 2020, end delete begin insert entity end insert to interrupt communications service without first obtaining a court order if it reasonably determines that an extreme emergency situation exists that involves immediate danger of death or great bodily injury and there is insufficient time, with due diligence, to first obtain a court order, and it complies with other specified requirements including, applying for a court order within 6 hours after the commencement of the interruption of communications begin delete service, as prescribed. end delete begin insert service. end insert If the application is filed after the 6 hours, as the bill would authorize in an emergency, the application would be required to include a specified statement under penalty of perjury. Since perjury is a crime, this bill would impose a state-mandated local program by creating a new crime. Additionally, the bill would require a governmental entity to provide to the provider of communications service begin delete and the court end delete a signed statement of intent to apply for a court order signed by an authorized official. begin insert If a governmental entity does not apply for a court order within 6 hours due to an emergency, the bill would require the governmental entity to submit a copy of the signed statement of intent to the court within 6 hours. end insert

The bill would provide that good faith reliance upon an order of a judicial officer or a signed statement of intent to apply for a court order begin delete that the governmental entity assets meets certain requirements end delete 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.

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.

begin insert

The bill would repeal these new provisions on January 1, 2020.

end insert

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

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

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

SECTION 1.  

The Legislature hereby finds and declares all of
the following:

(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.

(b) With email, data transfers, videoconferencing, e-commerce,
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.

(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.

(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.

(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.

(f) Interruption of communications service by a governmental
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.

(g) The California Supreme Court, in Sokol v. Public Utilities
Commission (1966) 65 Cal.2d 247, 265, articulated the standard
that any future commission rule for discontinuation of telephone
services used for illegal purposes must at a minimum require that
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.

(h) In August 2011, the Bay Area Rapid Transit 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.

(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.

(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.

SEC. 2.  

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

7908.  

(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) (A) “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.

(B) “Interrupt communications service” does not include any
interruption of communications 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 of this code, Section 149 or 7099.10 of the Business and
Professions Code, or Section 4575 or subdivision (d) of Section
4576 of the Penal Code.

(C) “Interrupt communications service” does not include any
interruption of service pursuant to an order to cut, reroute, or divert
begin insert service to end insert a telephone line or wireless device used or available for
use for communication by a person or persons in a hostage or
barricade situation pursuant to Section 7907. However,
“interruption of communications service” includes any interruption
of service resulting from an order pursuant to Section 7907 that
affects begin insert service to end insert wireless devices other than begin delete those end delete begin insert any wireless
device end insert used by, or available for use by, the person or persons
involved in a hostage or barricade situation.

(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, and immediate danger to
public safety, health, or welfare 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 communications
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
begin insert first obtaining end insert 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 or great bodily injury 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 governmental entity does
all of the following:

(A) (i) Applies for a court order begin insert authorizing the interruption
of communications service end insert without delay, but within six hours
after commencement of an interruption of communications service
except as provided in clause (ii).

(ii) If it is not possible to apply for a court order within six hours
due to an emergency, the governmental entity shall apply for begin delete an end delete
begin insert a court end insert order begin delete as soon as possible, end delete begin insert at the first reasonably available
opportunity, end insert but in no event later than 24 hours after
commencement of an interruption of communications service. If
an application is filed more than six hours after commencement
of an interruption of communications service pursuant to this
clause, the application shall include a declaration under penalty
of perjury stating the reason or reasons that the application was
not submitted within six hours after commencement of the
interruption of communications service.

(B) Provides to the provider of communications service involved
in the service interruption begin delete and the court end delete 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 begin delete circumstances, end delete begin insert circumstances end insert and the
specific communications service to be begin delete interrupted with sufficient
detail as to the customer, cell sector, central office, or geographical
area affected. end delete begin insert interrupted. If a governmental entity does not apply
for a court order within 6 hours due to the emergency, then the
governmental entity shall submit a copy of the signed statement
of intent to the court within 6 hours. end insert

(C) Provides 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 service 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 begin delete that the
governmental entity asserts meets the requirements of end delete begin insert pursuant to end insert
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.

(h) This section shall remain in effect only until January 1, 2020,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2020, deletes or extends that date.

SEC. 3.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.