BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 380|
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UNFINISHED BUSINESS
Bill No: SB 380
Author: Padilla (D), et al.
Amended: 8/22/13
Vote: 21
SENATE ENERGY, UTILITIES & COMMUNIC. COMM. : 10-0, 4/16/13
AYES: Padilla, Fuller, Cannella, Corbett, De Le�n, 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
SENATE FLOOR : 35-3, 5/29/13
AYES: Beall, Block, Calderon, Cannella, Corbett, Correa, De
Le�n, DeSaulnier, Emmerson, Evans, Fuller, Gaines, Galgiani,
Hancock, Hernandez, Hill, Hueso, Jackson, Knight, Lara, Leno,
Lieu, Liu, Monning, Nielsen, Padilla, Price, Roth, Steinberg,
Torres, Walters, Wolk, Wright, Wyland, Yee
NOES: Anderson, Berryhill, Huff
NO VOTE RECORDED: Pavley, Vacancy
ASSEMBLY FLOOR : 77-0, 9/4/13 - See last page for vote
SUBJECT : Communications: service interruptions
SOURCE : Author
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DIGEST : 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.
Assembly Amendments (1) extend the sunset date to January, 1,
2020; (2) require a court order to be applied for within six
hours and in no event later than 24 hours, as specified; (3)
require that if a court order is not applied for within six
hours as specified, a copy of a signed statement of intent must
be submitted to the court; (4) add a coauthor; and (5) make
technical and clarifying changes.
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, or a communications service
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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 due to an emergency, the entity
shall apply "at the first reasonable available opportunity",
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.
4. Provides to the provider of communications service involved
in the service interruption a statement of intent to apply
for a court order signed by an authorized official of the
governmental entity. The statement of intent shall clearly
describe the extreme emergency circumstances and the specific
communications service to be interrupted. If a governmental
entity does not apply for a court order within six hours due
to the emergency, then the governmental entity shall submit a
copy of the signed statement of intent to the court within
six hours.
5. Sunsets the provisions January 1, 2020.
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
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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).
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
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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
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.
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FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 9/5/13)
American Civil Liberties Union Northern California
AT&T
California Cable and Telecommunications Association
California Chapter of the National Emergency Number Association
California Communications Association
California Newspaper Publishers Association
California's Independent Telecommunications Companies
Los Angeles County District Attorney's Office
TechNet
OPPOSITION : (Verified 9/5/13)
Association for Los Angeles Deputy
League of California Cities
Los Angeles Police Protective League
Riverside Sheriffs' Association
ARGUMENTS IN SUPPORT : 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
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communications provider to be able to manage their systems.
ARGUMENTS IN OPPOSITION : The League of California Cities
states:
As written, the bill would require a court order supported by
probable cause and the threat of "serious, direct and
immediate danger" in the absence of a service interruption.
The bill would also require the service interruption to be
narrowly tailored so as to prevent the unlawful infringement
on the First Amendment freedom of speech.
While the bill contains an exception to the court order
requirement, meeting its conditions is even more onerous.
Under the terms of the exception, the service interruption
would still have to meet the requirements of the court order
and the governmental entity would have to fulfill a notice
requirement, issue a statement of intent to the communications
provider, and apply for a court order within two hours of the
time the service interruption begins.
While the decision to initiate local service interruptions has
been questionable in some instances, the one-size-fits-all
approach which SB 380 represents seriously compromises the
ability of local officials and law enforcement personnel to
manage emergency situations with appropriate flexibility.
ASSEMBLY FLOOR : 77-0, 9/4/13
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Bigelow, Bloom,
Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian
Calderon, Campos, Chau, Ch�vez, Chesbro, Conway, Cooley,
Dahle, Daly, Dickinson, Donnelly, Eggman, Fong, Fox, Frazier,
Beth Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gorell,
Gray, Grove, Hagman, Hall, Harkey, Roger Hern�ndez, Holden,
Jones, Jones-Sawyer, Levine, Linder, Logue, Lowenthal,
Maienschein, Mansoor, Medina, Mitchell, Morrell, Mullin,
Muratsuchi, Nazarian, Nestande, Olsen, Pan, Patterson, Perea,
V. Manuel P�rez, Quirk, Quirk-Silva, Rendon, Salas, Skinner,
Stone, Ting, Wagner, Waldron, Weber, Wieckowski, Wilk,
Williams, Yamada, John A. P�rez
NO VOTE RECORDED: Melendez, Vacancy, Vacancy
JG:k 9/5/13 Senate Floor Analyses
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SUPPORT/OPPOSITION: SEE ABOVE
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