BILL ANALYSIS Ó
SB 380
Page 1
SENATE THIRD READING
SB 380 (Padilla)
As Amended August 22, 2013
Majority vote
SENATE VOTE :35-3
JUDICIARY 10-0 APPROPRIATIONS 17-0
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|Ayes:|Wieckowski, Wagner, |Ayes:|Gatto, Harkey, Bigelow, |
| |Alejo, Chau, Dickinson, | |Bocanegra, Bradford, Ian |
| |Garcia, Gorell, | |Calderon, Campos, |
| |Maienschein, Muratsuchi, | |Donnelly, Eggman, Gomez, |
| |Stone | |Hall, Holden, Linder, |
| | | |Pan, Quirk, Wagner, Weber |
|-----+--------------------------+-----+--------------------------|
| | | | |
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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.
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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;
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 or an immediate risk of great bodily injury,
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 generally for a court order no later than six
hours after commencement of an interruption of
communications service, and in no event later than 24
hours.
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
within the initial six hour normal grace period, the law
enforcement agency shall be required to provide a copy of
the signed statement of intent to the relevant judicial
officer.
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c) Provides conspicuous notice of the application for a
court order authorizing the service interruption on its
Internet Web site, 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.
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.
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
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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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, negligible fiscal impact.
COMMENTS : The author introduced this important measure in
response to events surrounding controversial Bay Area Rapid
Transit (BART) actions, 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.
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. 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.
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,
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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).
This 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.
This bill is a revision of SB 1160 (Padilla) of 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.
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.
The author has diligently worked with representatives of law
enforcement organizations to find the "sweet spot" of reasonable
compromise on a few issues of concern, and with the bill's
recent amendments there is no known opposition to the measure.
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334
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