BILL ANALYSIS �
SB 380
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Date of Hearing: July 2, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
SB 380 (Padilla) - As Amended: May 14, 2013
SENATE VOTE : 35-3
SUBJECT : COMMUNICATIONS: SERVICE INTERRUPTIONS
KEY ISSUE : SHOULD A GOVERNMENTAL ENTITY GENERALLY BE PRECLUDED
FROM BLOCKING PUBLIC ACCESS TO PHONE OR OTHER COMMUNICATION
SERVICES WITHOUT A SPECIFIC COURT ORDER SETTING FORTH THE
EMERGENCY CIRCUMSTANCES JUSTIFYING SUCH AN EXTRAORDINARY PRIOR
RESTRAINT OF FREE SPEECH?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This important bill seeks to address weighty First Amendment
concerns raised by a situation in which a governmental agency
engages in the prior restraint of unilaterally cutting wireless
telephone service in an effort to block a potential act of
public protest. The bill arose from controversial actions by
BART whereby BART officials unilaterally cut off public access
to cell phone communication at some stations, without any court
order, to prevent public protest and possible acts of violence.
Existing law prohibits a telephone company from refusing service
except when a customer has failed to pay charges or where it is
necessary to prevent illegal conduct. Subject to a limited
exception, this bill would prohibit a governmental entity - or a
communications service provider acting at the request of a
governmental entity - from blocking communications services
unless it first obtains a court order making specified findings
as to the nature and gravity of the situation justifying the
interruption of public service. Under the bill, a governmental
entity will be permitted to block phone services prior to
obtaining a judicial order only under carefully specified
exceptions. But even in these limited circumstances a court
order must still be subsequently applied for within a short
timeframe.
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The measure is supported by the American Civil Liberties Union,
AT&T, and the California Cable & Telecommunications Association.
It is currently opposed by the Los Angeles County District
Attorney's Office and the Los Angeles County Sheriff's
Department unless requested amendments are made. The analysis
suggests some possible amendments the Committee may wish to
discuss with the author that could potentially lead to these law
enforcement groups removing their opposition and could be found
to strengthen the measure.
SUMMARY : Generally requires a governmental entity to obtain an
order, signed by a judicial officer, before communications
services may be lawfully interrupted. Specifically, this bill :
1)Prohibits a governmental entity, or 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
communications service for an illegal purpose, except pursuant
to an order signed by a judicial officer and including the
following findings:
a) There is probable cause to believe that the service is
being or will be used for an unlawful purpose or to assist
in a violation of law;
b) Absent immediate and summary action to interrupt
service, serious, direct, immediate and irreparable danger
to public safety will result; and
c) Interruption of service is narrowly tailored to prevent
unlawful infringement of speech protected by the U.S. and
California constitutions, or violate any other rights under
federal or state law.
2)Requires the order authorizing the interruption to:
a) Clearly describe the specific communications service to
be interrupted with sufficient detail as to customer, cell
sector, central office, or geographical area affected;
b) Be narrowly tailored to the specific circumstances;
c) Interfere with no more communication than necessary to
achieve its purpose;
d) Authorize a service interruption only for as long as
reasonably necessary;
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e) Require the interruption cease once the danger
justifying the interruption is abated;
f) Specify a process to immediately serve notice on the
communications service provider to cease the interruption.
3)Authorizes a governmental entity to interrupt communications
service without an order where it reasonably determines an
extreme emergency situation exists that involves immediate
danger of death and there is insufficient time to first obtain
a court order, provided the interruption meets the specified
grounds for issuance of an order and that entity does the
following:
a) Applies for a court order no later than two hours after
commencement of an interruption of communications service;
b) Provides to the communications service provider a
statement of intent to apply for a court order, signed by
an authorized official of the governmental entity, that
describes the extreme emergency circumstances and the
specific communications service to be interrupted; and
c) Provides conspicuous notice of the application for a
court order authorizing the service interruption on its
internet website, without delay, unless the circumstances
justifying an interruption of communications services
without first obtaining a court order justify not providing
the notice.
4)Requires an order to interrupt service, or a statement of
intent to seek such an order, falling within the federal
Emergency Wireless Protocol to be served on the California
Emergency Management Agency. Requires that all other orders
or statements of intent be served on the communications
service provider's contact, as specified.
5)Provides that good faith reliance by a communications service
provider on an order or a signed statement of intent shall
constitute a complete defense against any action brought as a
result of the interruption of service as directed by that
order or statement.
6)Codifies a legislative finding declaring that it is a matter
of statewide concern to ensure 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.
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EXISTING LAW :
1)Provides that an agent, operator or employee of a telephone
office who willfully refuses or neglects to transmit a message
received by the office is guilty of a misdemeanor. Specifies,
however, that nothing in this provision shall be construed to
require delivery of a message in the following situations: a)
charges for the service have not been paid or tendered; b) the
message counsels, aids, abets, or encourages treason against
the United States or California governments; or c) the message
is calculated to further a fraudulent plan or purpose, to
instigate or encourage the perpetration of unlawful acts, or
to facilitate the escape of a criminal or a person accused of
a crime. (Public Utilities Code Section 7904.)
2)Authorizes a supervising law enforcement official with
probable cause to believe a person is holding hostages and is
committing a crime, or is barricaded and resisting
apprehension through the use or threatened use of force, to
order a previously designated telephone corporation security
employee to cut, reroute, or divert telephone lines for the
purpose of preventing telephone communication by such
suspected person with any person other than a peace officer or
a person authorized by a peace officer. (Public Utilities
Code Section 7907.)
COMMENTS : The author introduced this important measure in
response to events surrounding controversial BART shootings in
2009 and 2011 which, among other things, raised weighty First
Amendment issues as to when, and under what circumstances,
governmental entities may appropriately seek to shut down the
ability of Californians to communicate and potentially engage in
peaceful protest. This measure seeks to strike a reasonable
balance between minimizing prior restraints on First Amendment
rights and permitting such prior restraints under carefully
limited circumstances.
Background : According to news reports, on New Year's Day, 2009,
BART police officers responding to reports of a fight detained
Oscar Grant and several other men on the Fruitvale BART station
platform. Spectator videos showed Grant lying on his stomach,
apparently defenseless, as an officer stood over him, pulled his
pistol, and fatally shot Grant. The footage was widely
disseminated and resulted in numerous protests, both peaceful
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and violent. ("BART Shooting Suspect's Bail Set At $3 Million,"
San Jose Mercury News, January 30, 2009.)
Then, on July 3, 2011, BART police at the San Francisco Civic
Center station fatally shot a homeless man, Charles Blair Hill.
("Man Shot to Death by BART Officer Identified," San Francisco
Chronicle, July 7, 2011.) Eight days later, an estimated 100
people participated in a peaceful protest at the Civic Center
BART platform in an effort to pressure the agency to release
video of the incident that led to the shooting of Hill. A BART
spokesman stated afterward that train delays resulting from the
protest caused some commuters to miss connecting trains.
("BART: Next Time, 'Zero Tolerance' For Disruptions," San
Francisco Chronicle, July 13, 2011.) On August 11, 2011, BART
reportedly successfully shut down cell service at select
stations to thwart a rumored second protest, citing organizers'
reported intention to "use mobile devices to coordinate their
disruptive activities and communicate about the location and
number of BART police." ("Statement on Temporary Wireless
Service Interruption in Select BART Stations on Aug. 11," BART
Press Release, August 12, 2011.) The protest never occurred.
The decision by BART to cut phone service prompted a critical
investigation by the Federal Communications Commission as well
as further protests by civil liberty advocacy groups. ("Bay
Area Officials Cut Cell Coverage to Thwart Protesters," New York
Times, August 12, 2011; "After Cellphone Action, BART Faces
Escalating Protests," New York Times, August 20, 2011.)
Eventually, BART closed four stations instead of continuing the
policy of cutting wireless and cell service.
Then, in December of 2011, the BART board of directors
reportedly adopted a policy specifying when mobile wireless
service could be shut down. The policy left it up to BART
officials to determine whether sufficiently strong evidence of
imminent unlawful activity, threats to public safety, or other
forms of disruption existed to justify interrupting service.
First Amendment Considerations : BART's action in cutting off
wireless service in order to preemptively thwart protests on a
matter of public concern clearly constituted a prior restraint
on speech. As this Committee knows well, the Free Speech Clause
of the First Amendment restricts government regulation of
private speech. It is presumptively unconstitutional for the
government to place burdens on speech because of its content.
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To justify such content-based regulation of speech, the
government must show that the regulation is necessary to serve a
compelling state interest and is narrowly tailored to achieve
its purpose. (Simon & Schuster, Inc. v. Members of the New York
State Crime Victims Board (1991) 502 U.S. 105.)
However, certain categories of speech, such as obscenity,
defamation, and fighting words, have been determined by the
Supreme Court to be subject to reasonable regulations. Even in
these cases, however, the Court is less likely to uphold a prior
restraint (regulation or action prohibiting speech before its
occurrence) than a punishment for speech that has already
occurred.
While content-based regulation of speech is subject to the
strict scrutiny standard outlined above, content-neutral speech
regulations are subject to intermediate scrutiny and will be
upheld if the government can show (1) the regulation advances an
important interest unrelated to the suppression of speech, and
(2) it does not burden substantially more speech than necessary
to further that interest. (Turner Broadcasting System, Inc. v.
FCC (1994) 512 U.S. 622.) Overbroad regulations-those
prohibiting substantially more speech than necessary-will not be
upheld. Any regulation of speech punishing or limiting a
substantial amount of protected speech judged in relation to the
regulation's legitimate sweep is considered facially invalid.
(Virginia v. Hicks (2003) 539 U.S. 113.)
Important for this measure, the U.S. Supreme Court has stated
that speech can lose its protection under rare circumstances
when it involves (1) the likelihood of imminent lawless action,
and (2) is directed at inciting or producing that imminent
lawless action. (Brandenburg v. Ohio (1969) 395 U.S. 444, 447.)
A prior restraint is any governmental action that prevents a
communication from reaching the public. Although there is no
bright-line standard for determining when a prior restraint is
justified, the government's burden is heavy; the Supreme Court
has repeatedly held that prior restraints are the most egregious
and constitutionally suspect forms of restraint. (See, e.g.,
Near v. Minnesota (1931) 283 U.S. 697 (prior restraints are only
justified in extreme situations, such as repressing information
about troop movements in time of war); New York Times v. U.S.
(1971) 403 U.S. 713 ("The Pentagon Papers" case, the societal
harm must be more than theoretical). Prior restraints have
typically been upheld in situations limited to such vital
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societal interests as national security, preservation of a fair
trial, situations where the restraint has been contractually
agreed to, military discipline and operations, and obscenity.
(See, e.g., Near, supra (national security, military interests);
Nebraska Press Association v. Stewart (1976) 427 U.S. 539 (fair
trial); Snepp v. United States (1980) 444 U.S. 507 (contract).)
Again importantly for this measure, federal courts have held
that the proper response to protest-even protest that might
potentially result in social disruption or violence-is not to
prohibit the speech beforehand, but to hire additional police
officers and arrest any who engage in unlawful conduct.
(Collins v. Jordan, 110 F.3d 1363 (9th Cir. 1997); Ovadal v.
City of Madison, 416 F.3d 531 (7th Cir. 2005) ("[T]he police
must permit the speech and control the crowd.").) In addition,
the Supreme Court has held that no system of prior restraint
will be upheld unless it provides those whose speech is being
restrained certain procedural safeguards. The standards must be
(1) narrowly drawn, reasonable and definite (Butterworth v.
Smith (1990) 494 U.S. 624); (2) the governmental body wishing to
restrain dissemination must promptly seek an injunction (Teitel
Film Corp. v. Cusack (1968) 390 U.S. 139); and (3) there must be
a prompt and final judicial determination of the validity of the
restraint (National Socialist Party v. Village of Skokie (1977)
432 U.S. 43).
It is thus unlikely that the circumstances confronting BART
officials in 2011 noted above would have been found to have
justified a prior restraint.
This bill therefore seeks to address these types of prior
restraint circumstances. In addition to requiring a magistrate
to find the requested prior restraint is narrowly tailored to
prevent unlawful infringement of speech, the measure requires a
magistrate first to find that there is probable cause the
service is being, or will be, used for an unlawful purpose or to
assist in a violation of the law, and that, absent immediate and
summary action to interrupt service, serious, direct, immediate
and irreparable danger to public safety will result.
As the thoughtful Senate Judiciary Committee analysis points
out, taken together, these factors would presumably require not
only that the service be tied to an unlawful purpose, or to
assist in a violation of the law, but also that the danger to
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public safety that would result absent immediate action would
meet the standard of exceptional circumstances justifying a
prior restraint.
This Bill Reflects the Author's Continuing Efforts to Address
This Important First Amendment Issue -- SB 1160 of 2012 : This
bill is a revision of SB 1160 (Padilla, 2012), which the
Governor vetoed last year with encouragement that he be sent a
revised bill balancing protection of speech with the ability of
law enforcement to utilize service interruptions for the
protection of public safety. Unlike SB 1160, this bill makes no
change to current law authorizing law enforcement to order the
cutting or rerouting of a telephone line in hostage situations.
(Public Utilities Code Section 7907.) In addition, this bill
revises and simplifies the determination that law enforcement
must make when seeking to interrupt communications in an
emergency situation when there is insufficient time to first
obtain a court order.
Few Remaining Areas of Concern by Law Enforcement : The author
has been diligently working with representatives of law
enforcement organizations to try to find the "sweet spot" of
reasonable compromise on a few remaining issues of concern.
Following is a discussion about these remaining concerns along
with some possible compromise amendments.
Emergency Situation Exception : As noted above, this bill
provides an exception to the court order requirement in an
extreme emergency situation that establishes the propriety of
communication service interruptions in rare instances. In its
current form, the bill 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 in support of this very short "emergency situation
exception" that obtaining judicial review as soon as possible is
essential because lengthy shutdowns threaten public safety by
depriving access to emergency services and infringe on citizens'
rights to communicate with each other.
Law Enforcement Concerns : The Los Angeles County District
Attorney's Office and the Los Angeles Sheriffs' Office have
continuously opposed the bill due to its two hour order
requirement, stating that it "handcuff[s] law enforcement."
These public safety organizations continue to urge a 48-hour
period before the order must be sough, writing that: "In order
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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 the two hours.
This will be difficult or impossible in many emergencies,
particularly during a large scale disaster or terrorist
situation."
In response, the author notes that current law requires a
designated judge to be on call 24 hours a day, seven days a
week, and authorizes use of electronic signatures for warrants
and orders. (Cal. Pen. Code sections 810, 1526.)
Possible Committee Amendment One -- Exigent Circumstances : In
order to strike a middle ground to this issue, the Committee may
wish to discuss with the author his openness to a 6-hour grace
period law enforcement exception before a court order must be
secured. In such case, perhaps there could be a maximum
allowable period of 24 hours in which time no matter what the
circumstances the law enforcement entity must have sought a
court order. In addition, perhaps within the initial 6 hours,
the law enforcement agency should be required to provide
information to the relevant judicial officer that clearly
describes the specific communications service to be interrupted
with sufficient detail as to customer, cell sector, or
geographical area affected so that the interruption can be
narrowly tailored to the specific hostage or barricade situation
and not interrupt more communication than is necessary.
This possible committee amendment would appear to address the
concerns expressed by law enforcement in this regard. The
approach would appear not to be onerous to law enforcement
because this is the information these organizations must already
provide to the service provider to institute a shutdown, and it
appears to address the author's legitimate concern there be some
judicial oversight in all such circumstances much more quickly
than 24 hours.
Possible Committee Amendment Two -- Standard for Extreme
Emergency Situations : This bill creates an exception to the
prior 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." The author states that this standard has been revised
from SB 1160 in order to respond to the Governor's veto message.
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The Los Angeles District Attorneys Office urges an amendment
extending the extreme emergency exception to situations where
there is an immediate risk of great bodily injury. Arguing that
the danger of death standard is too narrow, the L.A. D.A.'s
Office offers the example of a terrorist threatening to set off
a weapon containing a chemical that causes great bodily injury,
but not death.
However, the Committee may wish to discuss with the author the
potential benefit of reaching a compromise on this point as
well.
Possible Committee Amendment Three -- Hostage and Barricade
Situations : Current law 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. (Pub. Util. Code Section 7907.) The L.A.
D.A.'s Office also has been urging the author to accept an
amendment completely exempting Section 7907 so that court orders
are not required to shut off phone services in hostage or
barricade situations.
However, this proposed law enforcement amendment infers that
Section 7907 applies to wireless service and would result in a
broad extension of government entities' unilateral power in
hostage and barricade situations. The author suggests that
Section 7907 has never been construed by a court to apply to
wireless service. He notes that the statute was enacted prior
to the advent of cellular service and prior to the
implementation of 911 emergency service. In addition, the
author points out that cellular service cannot be "cut" the same
way a single landline can. Instead, a shutoff of one suspect's
cell service impacts all users in the cell block or geographic
area of the shutdown, raising significant public safety
concerns. Further, about 75% of 911 calls are now made from
wireless phones.
To address this concern by law enforcement, the Committee may
wish to discuss with the author his openness to amending the
bill to remove the reference to "landline" and replacing the
term with "telephone line" to ensure law enforcement can cut
such communications when appropriate in hostage/barricade
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situations .
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union
AT&T
California Cable & Telecommunications Association
Opposition
Los Angeles County District Attorney's Office
Los Angeles County Sheriff's Department
Analysis Prepared by : Drew Liebert and Alex Nowinski / JUD. /
(916) 319-2334