BILL ANALYSIS � 1
SENATE ENERGY, UTILITIES AND COMMUNICATIONS COMMITTEE
ALEX PADILLA, CHAIR
SB 380 - Padilla Hearing Date:
April 16, 2013 S
As Amended: April 1, 2013 Non-FISCAL
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Current law 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.
Current law authorizes law enforcement to order a cut, divert,
or reroute to a telephone line to prevent communications where
there is probable cause that a person is holding hostages and
committing a crime, or in a barricade situation.
A California Supreme Court decision held that it is unlawful for
a telephone corporation to interrupt landline telephone service
at the request of law enforcement unless the interruption is
pursuant to a court order based upon a finding that there is
probable cause the service is being used in illegal acts which,
absent immediate interruption, would result in significant
dangers to the public health, safety, and welfare.
Current law and 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.
This bill would prohibit a government entity, and a provider of
communications service acting at the request of a government
entity, from 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
probable cause.
This bill would require that the court order authorizing an
interruption of service include a finding that the interruption
is narrowly tailored to prevent unlawful infringement of speech
that is protected by the First Amendment of the United States
Constitution or the free speech provision of the California
Constitution.
This bill would provide an exception to the court order
requirement 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.
This bill would require, in the case of an interruption without
a prior court order, that the governmental entity apply for a
court order no later than two hours after commencement of a
service interruption, and provide the communications service
provider a statement of intent to apply for a court order.
Current regulations of the California Public Utilities
Commission (CPUC) require landline telephone corporations to
notify a customer of a court order to interrupt service being
used for an illegal purpose and establishes a procedure for the
customer to challenge the interruption.
This bill would require that a communications service provider
that interrupts service pursuant to a court order as required by
this bill also comply with any applicable regulation of the
CPUC, FCC, or both, and any other applicable provision of state
or federal law.
Current law provides communications service providers immunity
from liability arising from actions relating to customers'
service as directed by court orders.
This bill would provide immunity for communications service
providers that act pursuant to a court order or statement of
intent to apply for a court order authorizing a service
interruption.
This bill would make legislative findings that protecting
customers' 911 access to emergency services and their means to
engage in constitutionally protected expression is a matter of
statewide concern, thereby preempting local laws or policies
that conflict with this bill.
BACKGROUND
Landline telephone service was once the only widely available
means for voice communications and calling 911 for emergency
assistance. Now, growing numbers of people use other
technologies such as mobile wireless and Voice over Internet
Protocol (VoIP) services as their primary means of communication
for voice calls, texting, email, Internet access, and other
uses, including access to 911. Providers of wireless service
and some types of VoIP service are required to provide customers
911 access. About 70 percent of all 911 calls now originate
from wireless service.
While ubiquitous 911 access helps protect public safety, there
are occasions when law enforcement seeks to shut down
communications service in order to protect public safety and
prevent crime. However, California law has long held that such
shutdowns require prior court approval based on a finding of
probable cause of illegal activity. In 1942, in a case where the
State Attorney General ordered a telephone company to disconnect
service for a man suspected of supplying racing information to
bookmakers, a California appellate court held that no state
official has the authority to suspend telephone service on mere
assertion that illegal activity might take place.
In 1979, the California Supreme Court held in Goldin v. CPUC
that interruption of telephone service at the request of law
enforcement requires a court order with a finding of probable
cause that the service is being used in illegal acts that,
absent immediate interruption, would result in significant
dangers to the public health, safety, and welfare. This
requirement of a court order is enshrined in a CPUC rule that
governs providers of landline telephone service (Tariff Rule
31).
BART Policy - In December 2011, the board of directors of the
Bay Area Rapid Transit (BART) district adopted the nation's
first local policy specifying when wireless service can be shut
down. This followed BART's shutdown of wireless service for
three hours in August 2011 in an attempt to stop text
communication by individuals organizing a rally related to an
issue of great public interest. The shutdown led to criticism
of BART for depriving thousands of people of the ability to call
911 and to comparisons to oppressive governments around the
world that shut down communications systems in order to silence
public protests and demand for democratic freedoms.
BART's new policy allows BART to interrupt wireless 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.
FCC Action - At the time BART adopted its policy, the Chairman
of the FCC stated that open and available communications
networks are critical to democracy, the economy, and public
safety. On March 1, 2012, the FCC issued a Public Notice asking
for public comment on legal and policy many issues related to
intentional interruptions of wireless service by, or at the
request of, a government actor for the purpose of ensuring
public safety. A major theme of comments was that, in all but
the most extreme case, a shutdown of wireless service creates
more public safety problems than it solves because people in a
crisis cannot call 911 for help and cannot receive emergency
wireless alerts, and communication among first responders will
be impaired. To date, the FCC has not proposed any rules or
policy guidance.
COMMENTS
1. Author's Purpose . The author states that 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.
2. Responding to Governor's Veto Message . This bill is
substantially similar to SB 1160 (Padilla, 2012), which
Governor Brown vetoed, but with the following changes that
the author states respond to the Governor's veto message:
� Unlike SB 1160, this bill makes no change to current
law authorizing law enforcement to order a cut, divert,
or reroute a telephone line based on probable cause in
hostage and barricade situations under Section 7907 of
the Public Utilities Code.
� Revises and simplifies the determination law
enforcement must make when seeking to interrupt
communications in an emergency situation when there is
insufficient time to first obtain a court order.
� Makes legislative findings including that, with more
than 85 percent of American adults owning a wireless
device, and use of wireless services and platforms
expanding every day, protecting these wireless 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.
1. Narrow Focus on Government-Initiated Shutdowns . The
court order required by this bill applies only to service
interruptions by government, or by a provider at the
request of government, for the purpose of protecting public
safety or preventing use of the service for an illegal
activity. 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 CPUC because of
fraudulent business activity or misuse of automated
dialing-announcing devices, among others. This narrow
focus of the bill is consistent with the FCC's proceeding
seeking to develop federal guidance on government-initiated
shutdown of wireless service.
4. Targets Service Providing 911 Access . This bill seeks to
protect public safety by targeting providers of
communications service that are required to provide their
customers 911 access to emergency services. The bill's
applicability does not distinguish among technologies or
rely on whether or not a service is a "telecommunications
service" under federal law or provided by a "telephone
corporation" under state law. Instead, the bill applies to
any service that the FCC has required to provide 911
access, which includes traditional landline, wireless, and
certain Internet-based services. If the FCC has determined
it is a service where customers expect to be able to call
911 for help during an emergency, then this bill requires a
court order before government can shut down that service.
5. Preempts Conflicting Local Policies . This bill makes
legislative findings that protecting customers' 911 access
to emergency services and their means to engage in
constitutionally protected expression "is a matter of
statewide concern." This language expresses the
Legislature's intent that the bill's provisions apply
statewide and preempt any conflicting local law, including
that of a charter city. For example, the BART policy would
conflict with this bill because it allows BART officials to
determine when circumstances justify a service interruption
without any court order or finding of probable cause.
Thus, if this bill were enacted, the existing BART policy
would be preempted.
6. Hostage and Barricade Situations . Section 7907 of the
Public Utilities Code authorizes law enforcement to order a
telephone company to cut, divert, or reroute a telephone
line to prevent communications where there is probable
cause that a person is holding hostages and committing a
crime, or in barricade situations. SB 1160, last year's
version of this bill, amended this section to align with
the court order requirement. The Los Angeles District
Attorney's Association (LADA) and Los Angeles Sheriff
objected to a court order requirement in hostage and
barricade situations, and the author amended the bill to
align with Penal Code sections that require a court order
for electronic monitoring in hostage and barricade
situations no later than 48 hours after the monitoring
commences.
SB 380 makes no change to Section 7907 in response to the
Governor's veto message. However, the LADA has requested
that Section 7907 nonetheless be included in the list of
provisions not affected by this bill. These include
provisions that either do not involve a government entity
(i.e., a provider's internal security practices, automatied
dialing devices) or include a court order or similar
process (i.e., CPUC order to disconnect service of an
entity engaged in fraudulent business activity). Section
7907 applies only to law enforcement interrupting a single
landline (not wireless) and requires probable cause, but
not a court order or any other proceeding. Thus, Section
7907 could be read as in conflict with Goldin. However, to
be consistent with Penal Code provisions that allows 48
hours to obtain a court order in hostage and barricade
situations, the author and committee may wish to consider
amending the bill to exempt from the provisions of this
bill a law enforcement order to cut, divert, or reroute a
landline in a hostage or barricade situation pursuant to
Section 7907.
7. Timing of Court Order in Emergency Situation . This bill
provides an exception to the court order requirement in an
extreme emergency situation but requires the governmental
entity to apply for a court order without delay and in no
event later than two hours after commencement of a service
interruption. The author states that obtaining court
review as soon as possible is essential because lengthy
continuation of a shutdown threatens public safety by
depriving the public of the ability to call 911, and
infringes citizens' right to communicate, among other
social and economic impacts from losing wireless service.
The LADA states that two hours is too short a period to
submit an application for a court order, particularly if
the emergency is at night or on the weekend. The LADA
states the following: "Emergencies do not necessarily occur
during business hours. In order to apply for an order at
night or on the weekend, it would be necessary to draft the
affidavits, locate a designated judge and submit the
paperwork to that individual within two hours. This will
be difficult or impossible in many emergencies,
particularly during a large scale disaster or terrorist
situation."
The California Supreme Court, in the 1979 Goldin decision
requiring a court order based on probable cause before
interrupting service, compared the process of getting the
court order for this purpose to that for getting a court
order for a search warrant. Current law authorizes an
expedited procedure for obtaining warrants and court orders
from a designated judge required to be on call at all
times. Since 2010, electronic signatures are allowed on
warrants, which speed the process even more. Counties
implementing the e-signature technology for search warrants
in California state that the process can take only minutes
to complete.
8. Guidance from FCC Proceeding . To date, the FCC has not
acted in its proceeding on legal, policy, and operational
issues related to shutdown of wireless service. The author
has incorporated issues raised in comments and states that
he will continue to monitor the proceeding to determine if
this bill may need additional conforming amendments.
9. Technical Amendment . This bill requires a court order
to include a finding, as required by Goldin, that absent
immediate and summary action to interrupt communications
service, a serious, direct, and immediate danger to public,
safety, health or welfare will result. The author agrees
to amend the bill to accurately track this language.
10. Double Referral . Should this bill be approved by the
committee, it will be re-referred to the Senate Committee
on Judiciary for its consideration.
POSITIONS
Sponsor:
Author
Support:
AT&T
American Civil Liberties Union Northern California
American Federation of State, County and Municipal Employees
California Cable & Telecommunications Association
California Chapter of the National Emergency Number Association
The Utility Reform Network
Oppose:
Los Angeles County District Attorney's Office, unless amended
Jacqueline Kinney
SB 380 Analysis
Hearing Date: April 16, 2013