BILL ANALYSIS Ó SB 380 Page 1 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 Page 2 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 Page 3 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