BILL NUMBER: SB 962 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 2, 2014
AMENDED IN SENATE MAY 5, 2014
AMENDED IN SENATE APRIL 9, 2014
AMENDED IN SENATE MARCH 24, 2014
INTRODUCED BY Senator Leno
(Principal coauthor: Assembly Member Skinner)
(Coauthors: Senators Hancock, Pavley, and Wolk)
FEBRUARY 6, 2014
An act to add Section 22761 to the Business and Professions Code,
relating to mobile communications devices.
LEGISLATIVE COUNSEL'S DIGEST
SB 962, as amended, Leno. Advanced mobile communications
devices. Smart phones.
Existing law regulates various business activities and practices,
including the sale of telephones.
This bill would require that any advanced mobile
communications device, commonly known as a smartphone, that is
manufactured and sold in California on or after July 1, 2015,
smartphone, as defined, that is manufactured on or
after July 1, 2015, and sold in California after that date,
include a technological solution, which may consist of software,
hardware, or both software and hardware, that can render inoperable
the essential features of the device,
features, as defined, of the smartphone to an
unauthorized user when the device smartphone
is not in the possession of the rightful owner. The bill would
require that the technological solution be able to withstand a hard
reset, as defined, and when enabled, prevent reactivation of the
device smartphone on a wireless network
except by the rightful owner or his or her authorized designee. The
bill would make these requirements inapplicable when the
device smartphone is resold in California on the
secondhand market or is consigned and held as collateral on a loan.
The bill would prohibit the sale of an advanced mobile
communications device in California a smartphone that
is manufactured on or after July 1, 2015, and sold in California
after that date, unless, during the activation and
registration process, the device's default setting prompts
initial device set-up process, the smartphone's default setting
is to prompt the user to enable the technological solution. The
bill would authorize the rightful owner to affirmatively elect to
disable the technological solution at the point of sale,
during the activation and registration process, or anytime
thereafter. anytime. The bill would make a
knowing violation of the bill's requirements by a retail
entity subject to a civil penalty of not less than $500, nor
more than $2,500, for each violation. The bill would limit an
enforcement action to being brought by the Attorney General, a
district attorney, or city attorney, and would prohibit any private
right of action to enforce the bill's requirements.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) According to the Federal Communications Commission, smartphone
thefts now account for 30 to 40 percent of robberies in many major
cities across the country. Many of these robberies often turn violent
with some resulting in the loss of life.
(b) Consumer Reports projects that 1.6 million Americans were
victimized for their smartphones in 2012.
(c) According to the New York Times, 113 smartphones are lost or
stolen every minute in the United States.
(d) According to the Office of the District Attorney for the City
and County of San Francisco, in 2012, more than 50 percent of all
robberies in San Francisco involved the theft of a mobile
communications device.
(e) Thefts of smartphones in Los Angeles increased 12 percent in
2012, according to the Los Angeles Police Department.
(f) According to press reports, the international trafficking of
stolen smartphones by organized criminal organizations has grown
exponentially in recent years because of how profitable the trade has
become.
(g) Replacement of lost and stolen mobile communications devices
was an estimated thirty-billion-dollar ($30,000,000,000) business in
2012 according to studies conducted by mobile communications security
experts. Additionally, industry publications indicate that the four
largest providers of commercial mobile radio services made an
estimated seven billion eight hundred million dollars
($7,800,000,000) from theft and loss insurance products in 2013.
(h) Technological solutions that render stolen mobile
communications devices useless already exist, but the industry has
been slow to adopt them.
(i)
(g) In order to be effective, these
antitheft technological solutions need to be ubiquitous,
as thieves cannot distinguish between those mobile communications
devices that have the solutions enabled and those that do not. As a
result, the technological solution should be able to withstand a hard
reset or operating system downgrade, and be enabled by
default, with consumers being given come preequipped,
and the default setting of the solution shall be to prompt the user
to enable the solution during the initial device set up. Consumers
should have the option to affirmatively elect to disable this
protection.
(j) Manufactures of advanced mobile communications devices and
commercial mobile radio service providers have a responsibility to
ensure their customers are not targeted as a result of purchasing
their products and services.
(k) It is the intent of the Legislature to require all smartphones
offered for sale in California to come with a technological solution
enabled, in order to deter theft and protect consumers.
SEC. 2. Section 22761 is added to the Business and Professions
Code, to read:
22761. (a) For purposes of this section, the following terms have
the following meanings:
(1) "Advanced mobile communications device" means an electronic
device that is regularly hand held when operated that enables the
user to engage in voice communications using mobile telephony
service, Voice over Internet Protocol, or Internet Protocol enabled
service, as those terms are defined in Sections 224.4 and 239 of the
Public Utilities Code, and to connect to the Internet, and is limited
to what are commonly known as smartphones.
(2) "Commercial mobile radio service" means "commercial mobile
service," as defined in subsection (d) of Section 332 of Title 47 of
the United States Code and as further specified by the Federal
Communications Commission in Parts 20, 22, 24, and 25 of Title 47 of
the Code of Federal Regulations, and includes "mobile satellite
telephone service" and "mobile telephony service," as those terms are
defined in Section 224.4 of the Public Utilities Code.
(1) (A) "Smartphone" means a cellular radio telephone or other
mobile voice communications handset device that includes all of the
following features:
(i) Utilizes a mobile operating system.
(ii) Possesses advanced computing capability.
(iii) Has wireless network connectivity.
(iv) Is capable of operating on a long-term evolution network and
successor wireless data network communication standards.
(B) A smartphone may possess, but is not limited to, the following
capabilities:
(i) Built-in mobile software applications.
(ii) Internet access.
(iii) Digital voice service.
(iv) Text messaging.
(v) The ability to send and receive electronic mail.
(vi) Internet Web site browsing.
(C) A "smartphone" does not include a radio cellular telephone
commonly referred to as a "feature" or "messaging" telephone, a
laptop, a tablet device, or a device that only has electronic reading
capability.
(3)
(2) "Essential features" of an advanced mobile
communications device a smartphone include the
ability to use the device for voice communications and the ability to
browse the Internet, including the ability to access and use mobile
software applications commonly known as "apps." "Essential features"
does not include any functionality needed for the operation of the
technological solution.
(4)
(3) "Hard reset" means the restoration of an
advanced mobile communications device a smartphone
to the state it was in when it left the factory, and refers to
any act of returning a device smartphone
to that state, including processes commonly termed a factory
reset or master reset.
(5)
(4) "Sold in California" means that the
advanced mobile communications device smartphone
is sold at retail from a location within the state, or the
advanced mobile communications device smartphone
is sold and shipped to an end-use consumer at an address within the
state. "Sold in California" does not include a device
smartphone that is resold in the state on the
secondhand market or that is consigned and held as collateral on a
loan.
(b) (1) Any advanced mobile communications device that is
manufactured and sold in California on or after July 1, 2015, shall
include a technological solution that can render the essential
features of the device inoperable to an unauthorized user when the
device smartphone that is manufactured on or after
July 1, 2015, and sold in California after that date, shall include a
technological solution, to be provided by the manufacturer or
operating system provider, that can render the essential features of
the smartphone inoperable to an unauthorized user when the smartphone
is not in the possession of the rightful owner. The
technological solution shall be reversible, so that if the rightful
owner obtains possession of the device
smartphone after the essential features of the device
smartphone have been rendered inoperable, the
operation of those essential features can be restored by the rightful
owner or his or her authorized designee. A technological solution
may consist of software, hardware, or a combination of both software
and hardware, but shall be able to withstand a hard reset, and when
enabled, shall prevent reactivation of the device
smartphone on a wireless network except by the rightful
owner or his or her authorized designee. No advanced mobile
communications device smartphone that is
manufactured on or after July 1, 2015, may be sold in
California after that date unless, during the
activation and registration process, the device's default setting
prompts initial device set-up process, the smartphone'
s default setting is to prompt the user to enable the
technological solution.
(2) The "essential features" that are required to be rendered
inoperable pursuant to this subdivision do not include the ability of
a device the smartphone to access
emergency services by a voice call or text to the numerals
"911" and "911," the ability of a device to
receive wireless emergency alerts and warnings.
warnings, and the ability to call an emergency number
predesignated by the owner.
(3) The rightful owner of an advanced mobile
communications device a smartphone may
affirmatively elect to disable the technological solution at
the point of sale, during the activation and registration process,
or anytime thereafter. anytime. However, the
physical acts necessary to disable the technological solution may
only be performed by the end-use consumer or a person specifically
selected by the end-use consumer to disable the technological
solution.
(c) A person or retail entity selling
an advanced communications device that knowingly sells
a smartphone in California in violation of subdivision (b)
shall may be subject to a civil penalty
of not less than five hundred dollars ($500), nor more than two
thousand five hundred dollars ($2,500), per device sold in
California. A suit to enforce this section may only be brought
by the Attorney General, a district attorney, or a city attorney.
There is no private right of action to enforce this section.
(d) The seller of a smartphone, its employees, and its agents, are
not liable to any person for civil damages resulting from, or caused
by, failure of a technological solution, including any hack or other
third-party circumvention of the technological solution. A failure
due to hacking or other third-party circumvention may be considered a
violation for purposes of subdivision (c), only if, at the time of
sale, the seller had received notification from the manufacturer that
the failure existed and that it cannot be remedied by a patch or
other technological solution.
(d)
(e) Any request by a government agency to interrupt
communications service utilizing a technological solution required by
this section is subject to Section 7908 of the Public Utilities
Code.
(f) Nothing in this section prohibits a network operator, device
manufacturer, or operating system provider from offering a
technological solution or other service in addition to the
technological solution required to be provided by the device
manufacturer or operating system provider pursuant subdivision (b).
(e)
(g) Nothing in this section requires a technological
solution that is incompatible with, or renders it impossible to
comply with, obligations under state and federal law and regulation
related to any of the following:
(1) The provision of emergency services through the 911 system,
including text to 911, bounce-back messages, and location accuracy
requirements.
(2) Participation in the wireless emergency alert system.
(3) Participation in state and local emergency alert and public
safety warning systems.