BILL ANALYSIS Ó
SB 380
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Date of Hearing: August 21, 2013
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Mike Gatto, Chair
SB 380 (Padilla) - As Amended: August 6, 2013
Policy Committee:
JudiciaryVote:10-0
Urgency: No State Mandated Local Program:
Yes Reimbursable: No
SUMMARY
This bill, until January 1, 2020, requires a governmental entity
to obtain an order, signed by a judicial officer, before
communications services may be lawfully interrupted, except as
specified. 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, with specified contents and findings, signed by a
judicial officer.
2)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 or great bodily injury and there is
insufficient time to first obtain a court order, provided the
entity takes specified actions, including applying for a court
order no later than six hours after commencement of an
interruption of communications service.
3)Stipulates that, if it is not possible to apply for a court
order within the six hours specified in (2) due to an
emergency, the entity shall apply as soon as possible, and no
later than 24 hours after commencement of the service
interruption. This application must include a declaration,
signed under penalty of perjury, stating the reasons for not
meeting the six-hour deadline.
SB 380
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FISCAL EFFECT
Negligible fiscal impact.
COMMENTS
1)Purpose . The author introduced this measure in response to
events surrounding controversial BART shootings in 2009 and
2011 which, among other things, raised 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.
2)Background . On New Year's Day 2009, Oscar Grant was shot and
killed by a BART police officer that the system's Fruitvale
Station. Then, on July 3, 2011, BART police at the San
Francisco Civic Center station fatally shot a homeless man,
Charles Blair Hill. 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. 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."
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.
Eventually, BART closed four stations instead of continuing
the policy of cutting wireless and cell service.
In December of 2011, the BART board of directors reportedly
adopted a policy specifying when mobile wireless service could
be shut down, leaving 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.
According to the Assembly Judiciary Committee analysis, 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. (See this
SB 380
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analysis for a synopsis of the case history on this issue.)
The analysis concludes that, given the case history, "It is
thus unlikely that the circumstances confronting BART
officials in 2011 noted above would have been found to have
justified a prior restraint."
3)SB 380 bill 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.
4)Prior Legislation . In 2012, SB 1160 (Padilla), was vetoed,
though the Governor encouraged 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. 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.
Analysis Prepared by : Chuck Nicol / APPR. / (916) 319-2081