BILL NUMBER: SB 380 AMENDED
BILL TEXT
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
INTRODUCED BY Senator Padilla
( Coauthor: Assembly Member
Gatto )
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 bill, until January 1, 2020, 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
communications 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 entity, until
January 1, 2020, entity 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 service, as prescribed.
service. 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 and the court a
signed statement of intent to apply for a court order signed by an
authorized official. 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.
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 that the governmental entity assets meets
certain requirements 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.
The bill would repeal these new provisions on January 1, 2020.
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 service to 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 service to wireless devices other than
those any wireless device 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
first obtaining 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 authorizing the
interruption of communications service 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
an a court order as soon as
possible, at the first reasonably available
opportunity, 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 and the court 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, circumstances and the specific
communications service to be interrupted with sufficient
detail as to the customer, cell sector, central office, or
geographical area affected. 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.
(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 that the
governmental entity asserts meets the requirements of
pursuant to 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.