BILL ANALYSIS Ó
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THIRD READING
Bill No: SB 380
Author: Padilla (D)
Amended: 5/14/13
Vote: 21
SENATE ENERGY, UTILITIES & COMMUNIC. COMM. : 10-0, 4/16/13
AYES: Padilla, Fuller, Cannella, Corbett, De León, DeSaulnier,
Hill, Knight, Wolk, Wright
NO VOTE RECORDED: Pavley
SENATE JUDICIARY COMMITTEE : 5-1, 5/7/13
AYES: Evans, Corbett, Jackson, Leno, Monning
NOES: Anderson
NO VOTE RECORDED: Walters
SUBJECT : Communications: service interruptions
SOURCE : Author
DIGEST : This bill requires a governmental entity to obtain an
order, signed by a judicial officer, making specified findings
before it interrupts communications services for the purpose of
protecting public safety or preventing the use of those services
for an illegal purpose, and requires that the order meet certain
requirements, as specified. This bill, however, authorizes a
governmental entity, until January 1, 2016, 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
CONTINUED
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complies with other specified requirements.
ANALYSIS : Existing federal law, the United States
Constitution, provides that Congress shall make no law abridging
the freedom of speech, or of the press, or the right of the
people peaceably to assemble, and to petition the government for
a redress of grievances. (U.S. Constitution, 1st Amendment), as
applied to the states through the 14th Amendment's Due Process
Clause.
Existing case law provides that prior restraints on speech bear
a "heavy presumption" of unconstitutionality. Existing case law
also provides that a prior restraint cannot be justified based
on "the insistence that the statute is designed to prevent"
speech that "tends to disturb the public peace and to provoke
assaults and the commission of crime."
Existing law provides that, if a supervising law enforcement
official has probable cause to believe that a person is holding
hostages and committing a crime, or is barricaded and resisting
apprehension through the use or threatened use of force, the
official may order a pre-designated telephone company employee
to arrange to cut, reroute, or divert telephone lines to prevent
telephone communication by the suspected person with anyone
other than a peace officer or a person authorized by the peace
officer. Among other things, existing law provides that good
faith reliance on an order by a law enforcement official shall
constitute a complete defense to any action brought under Public
Utilities Code (PUC) Section 7907.
This bill:
1.Prohibits a governmental entity, and a communications service
provider acting at the request of a governmental entity, from
interrupting communications service for the purpose of
protecting public safety or preventing the use of the service
for an illegal purpose, except pursuant to an order signed by
a judicial officer finding:
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
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communications service, serious, direct, immediate and
irreparable danger to public safety will result; and
C. That the interruption of communications service is
narrowly tailored to prevent unlawful infringement of
speech that is protected by the 1st Amendment to the U.S.
Constitution or Section 2 of Article I of the California
Constitution, or a violation of any other rights under
federal or state law.
1.Requires the order to:
A. Clearly describe the specific communications service to
be interrupted, as specified;
B. Be narrowly tailored to the specific circumstances under
which the order is made;
C. Interfere with no more communication than necessary to
achieve the its purposes;
D. Authorize an interruption of service only for as long as
is reasonably necessary;
E. Require the interruption to cease once the danger
justifying the interruption is abated; and
F. Specify a process to immediately serve notice on the
communications service provider to cease the interruption.
1.Authorizes a governmental entity, until January 1, 2016, to
interrupt communications service without an order only 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, provided that the interruption meets the grounds for
issuance of an order as specified and that the entity does all
of the following:
A. Applies for a court order without delay, and no event,
later than two hours after commencement of communications
service;
B. Provides to the communications service provider a
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statement of intent to apply for a court order, signed by
an authorized official of the governmental entity, that
clearly describes the extreme emergency circumstances, and
the specific communications service to be interrupted, as
specified; and
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 services without first obtaining a court
order justify not providing the notice.
1.Requires an order or a signed statement of intent that falls
within the federal Emergency Wireless Protocol to be served on
the California Emergency Management Agency, and requires that
all other orders or statements of intent be served on the
communications service providers' contact, as specified.
2.Requires a communications service provider that intentionally
interrupts communications service pursuant to this bill to
comply with any other applicable federal or state law, and any
other rule or notification requirement, as specified.
3.Provides that good faith reliance by a communications service
provider upon an order or a signed statement of intent, as
specified, 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.
4.Codifies a legislative finding and declaration 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.
5.Makes various findings and declarations, including, among
others, that:
A. Interruption of communications service can be a "prior
restraint" on speech; and
B. Such interruption threatens public safety by depriving
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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.
1.Provides definitions for various terms.
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% 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. Public
Utilities Commission 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
Commission rule that governs providers of landline telephone
service (Tariff Rule 31).
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Bay Area Rapid Transit (BART) policy . In December 2011, the
board of directors of 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.
Federal Communications Commission (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.
Prior Legislation
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
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and barricade situations under PUC Section 7907.
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% 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 1st Amendment freedoms that are the core of
democracy.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 5/15/13)
American Civil Liberties Union Northern California
AT&T
California Cable and Telecommunications Association
OPPOSITION : (Verified 5/16/13)
California State Sheriffs' Association
Los Angeles County District Attorney's Office
Los Angeles County Sheriff's Department
ARGUMENTS IN SUPPORT : According to the author, "? this bill
seeks to strike the right balance between the need to shut down
service in life-threatening emergencies and the need to avoid
unnecessary shutdowns because of the immense impact a shutdown
has on public safety, free speech, economic activity, and
people's connection to family, work, school, doctors, and more."
The author continues, "? I understand that shutting down service
immediately to saves lives may be necessary in certain
emergencies. At the same time, we must recognize that today's
pervasive wireless and mobile broadband services that dominate
every aspect of modern life are fundamentally different that
landline telephone service. Service to a single landline user
can be easily terminated. However, shutting down the wireless
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service of a bad actor necessarily requires shutting down
service of all others in the cell block or geographic area. A
wireless shutdown impacts first responders' ability to
communicate with each other, and prevents all people in the area
from calling 911 and receiving emergency wireless alerts.
Moreover, it prevents individuals at a crime scene from sending
photos or other information that can be instrumental in tracking
down suspects, as the recent Boston tragedy demonstrated."
The California Cable and Telecommunications Association (CCTA)
states:
CCTA recognizes that SB 380 is in response to the 2011 Bay
Area Rapid Transit (BART) incident where cell phone service
was disconnected in order to prevent communication during a
public demonstration. The proposed legislation would ensure
that Californians are not unreasonably deprived of their right
to engage in constitutionally protected expression, nor the
ability to connect with the state's 911 emergency services.
Specifically, SB 380 prohibits a governmental entity and a
communications provider acting at the request of a
governmental entity, from interrupting communications service
in order to protect public safety or prevent the use of
communications service for illegal purpose, without an Order
signed by a judicial officer. Notwithstanding your concern
and others regarding free speech, the bill addresses the
legitimate concerns for public safety by providing for the
disruption of communications service without a court order if
the governmental entity reasonably determines that an extreme
emergency exists and also recognizes the need for
communications provider to be able to manage their systems.
CCTA member companies provide advanced digital voice services
throughout California. The efficient and lawful operation and
use of our networks is critical to the provision of our
services, and we believe that SB 380 strikes the right balance
in protecting free speech and public safety, and the ability
of our members to operate their networks.
ARGUMENTS IN OPPOSITION : The Los Angeles District Attorney's
Office writes:
We believe that SB 380 will result in a threat to public
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safety, particularly in relation to crimes involving terrorist
acts, natural disasters, hostage/barricade situations, and
other extreme emergencies. This could cause loss of life or
serious physical injury to citizens and law enforcement
personnel.
Recent amendments made the bill worse. As written SB 380,
could limit the ability of law enforcement to respond in a
timely manner to extreme emergencies.
SB 380 is intended to prevent a situation where cell phone or
other communication service is interrupted in order to prevent
a peaceful demonstration. This was alleged to have occurred
in the interruption of cell phone service by BART during a
protest in the Bay Area.
The bill addresses the above problem by narrowing the standard
for shutting down phone service to a situation where the phone
is used for an unlawful purpose or to assist in the violation
of the law and there is a "serious, direct, (and) immediate
danger immediate to public safety, health or welfare.
We agree with the above portion of the bill. It fully
addresses the BART situation. However, SB 380 goes beyond the
stated purpose of the bill and unnecessarily interferes with
law enforcement's ability to temporarily cut-off a phone or
phones during an extreme emergency.
JGJA:k 5/16/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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