BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Hannah-Beth Jackson, Chair 2015-2016 Regular Session AB 1407 (Atkins) Version: May 21, 2015 Hearing Date: June 30, 2015 Fiscal: Yes Urgency: No NR SUBJECT Family law: protective orders: wireless telephone numbers DESCRIPTION This bill would, beginning July 1, 2016, authorize a court, after notice and a hearing, to issue a domestic violence restraining order directing a wireless telephone service provider to transfer the billing responsibility and rights to a wireless telephone number to a requesting party. This bill would require that, upon transfer of billing responsibility, the requesting party assume all financial responsibility for the transferred telephone number, monthly service costs, and costs for any mobile device associated with the telephone number. This bill would prohibit a cause of action against a wireless telephone service provider, its officers, employees, or agents, for actions taken in accordance with the terms of the court order, and would require the Judicial Council to, on or before July 1, 2016, develop any forms or rules necessary to effectuate these provisions. BACKGROUND Despite numerous beneficial legislative measures, domestic violence remains a significant problem, affecting an estimated one in four families. "Abuse" under the Domestic Violence Prevention Act encompasses a number of different actions, including: (1) physically hurting or trying to hurt someone; (2) AB 1407 (Atkins) Page 2 of ? sexual assault; (3) making someone reasonably afraid that they or someone else are about to be seriously hurt; (4) harassing, stalking, or threatening someone; (5) disturbing someone's peace; or (6) destroying someone's personal property. A court may issue a temporary restraining order to immediately protect a party for up to a few weeks, and after notice and a hearing where the respondent has had an opportunity to address the allegations against him or her, the court may enjoin an abuser from specified behavior for up to five years. Survivors planning to leave their abusers, or those who have already escaped and wish to start a new life, often rely on cellular phones to plan a transition and communicate with supportive family, friends, or other community resources. However, with the development of smart phones and new technology, abusers have begun using cell phones to determine a victim's location, behavior, and plans in a variety of ways, including using a location service on family plans, installing spyware on the phone, monitoring phone activity through phone bills, installing applications that provide location information about the victim's phone, monitoring recent calls and text messages and electronic mail, and Internet Web browsing history. Seeking to better protect survivors of domestic violence and their children, this bill would allow a court in a domestic violence proceeding, to direct a wireless telephone service provider to transfer billing responsibility and rights for a wireless telephone number to a requesting party. CHANGES TO EXISTING LAW Existing law authorizes the court under the Domestic Violence Prevention Act (DVPA), to issue an ex parte restraining order enjoining a party from assault or harassment, specified behavior, obtaining the address or location of the protected party, and/or determining the temporary use, possession, and control of real or personal property. (Fam. Code Secs. 6320 et. seq., 6324, 6340 et. seq.) Existing law allows a court, after notice and a hearing, to issue any restraining order described above, or an order excluding the restrained party from a dwelling, making custody determinations, ordering a party to pay child support, ordering the restrained party to participate in a batterer's program, for up to five years. (Fam. Code Secs. 6340 et seq.) AB 1407 (Atkins) Page 3 of ? This bill would authorize a court, beginning July 1, 2016, in a Domestic Violence Prevention Act proceeding after notice and a hearing, to issue an order directing a wireless telephone service provider (service provider) to transfer billing responsibility and rights to a wireless telephone number(s) to a requesting party, if the requesting party is not the accountholder. This bill would require that the order be made to the service provider, as specified, and contain specified information. This bill would require the service provider, when it cannot operationally or technically effectuate the order, to notify the requesting party within 72 hours. This bill would provide that a service provider, as part of the transfer of billing responsibility, is not precluded from applying any routine and customary requirements for account establishment, including but not limited to identification, financial information and customer preferences, to the requesting party. This bill would provide that no cause of action will lie against any wireless provider for actions taken in accordance with a court order issued pursuant to the provisions above. This bill would require the Judicial Council, by July 1, 2016, to develop any necessary forms or rules necessary to effectuate the above provisions. This bill would include Legislative intent language. COMMENT 1.Stated need for the bill According to the author: Current law provides no mechanism for victims of domestic violence to retain their wireless telephone number and device in these instances where the victim is not the wireless telephone accountholder. Allowing these individuals to retain the use of an existing wireless telephone number and access to their contacts and other information stored within the phone AB 1407 (Atkins) Page 4 of ? is important to the their safety and emotional support. 2.Additional protections for victims of domestic violence In a domestic violence proceeding, existing law authorizes a court to restrain a party from certain acts including harassing, striking, stalking, threatening, or contacting a protected party. This bill would additionally authorize a court, as part of a domestic violence proceeding, to order a wireless telephone provider to transfer a wireless number and billing responsibility to a requesting party who is not an accountholder. Women Escaping a Violent Environment (WEAVE), sponsor, writes in support: This bill is necessary for several reasons. First, it halts GPS tracking and stalking of a domestic violence victim. When the abuser is the accountholder, he has access to information about the victim's movements and the ability to review call activity, he or she can continue to harass and track the victim. Second, it will prevent the accountholder from controlling the account and suspending service, which interferes with the victim's ability to use this lifeline to community resources, life-saving services, and support network they need to leave their abuser. WEAVE additionally explains that the practical effect of this bill will be to enable judges to separate a single wireless contract into two contracts, by transferring the rights and responsibilities to a new contract holder, the protected party. a. Ability of court to order transfer of actual device to protected party Depending on type, domestic violence protective orders may last days, weeks, years, or even permanently. Temporary restraining orders (TROs) are filed with the court and become effective upon receiving a judge's signature and being served on the batterer. TROs may be granted ex parte, without formal notice to, or presence of the batterer, and are generally issued or denied on the date of application. (Fam. Code Sec. 6326.) TROs are normally effective for 21 days or until a hearing on the matter. After proper notice and hearing, a restraining order may be granted for up to five years, subject to future modification. Existing law also authorizes a court to issue an order, either ex parte or after notice and a AB 1407 (Atkins) Page 5 of ? hearing, determining the temporary use, possession and control of personal property, which would arguably include a wireless device, used by a survivor, but paid for and held in a batterer's name. Accordingly, under existing law, a court may transfer a wireless device to a protected party, thereby ensuring that a protected party would have access to all of the information held in that physical device, including her contacts and photos. While possession of the actual device partially ensures that some information will not be available to the batterer, the batterer may still be able to look up various information about the person's activity or calls. In support, the California College and University Police Chiefs Association writes: This is a critically important bill for victims of domestic violence. Currently a domestic violence victim who is in a shared family plane wireless telephone contract where the abuser is the primary accountholder has to go through unreasonable disruption just to keep in telephone contact with their own support system. Our members have way too much contact with persons escaping a domestic violence situation and this bill will go a long way towards assuring a domestic violence victim's safety and emotional support. To ensure that the survivor is fully protected, it is important that victims understand that possession of a wireless device alone does not necessarily ensure that the contract has been separated, thereby creating the protections discussed above. Accordingly, a victim can request possession of the phone (existing law) and under this bill would be able to also request a separation of the contract, thereby preventing a batterer from tracking a survivor's call, text, or location history. However, to ensure that victims and their representatives are aware that a wireless device is arguably personal property which a court may determine temporary possession of, the author may wish to amend the bill to incorporate the specific code provision granting the court this authority. Suggested amendment: AB 1407 (Atkins) Page 6 of ? (d) This section shall not affect the ability of the court to apportion the assets and debts of the parties as provided for in law, or the ability to determine the temporary use, possession, and control of personal property pursuant to sections 6324 and 6340. 1.Protects rights of respondent and interests of wireless providers This bill would authorize a court, only after a noticed hearing, to order a wireless provider to transfer a number, including the billing responsibilities and rights, to a requesting party. a. Rights of accountholder By only authorizing a court to order the transfer of a wireless number only after a noticed hearing, this bill would ensure that the accountholder will have an opportunity to defend the allegations against him or her before the court orders the modification of a personal contract. In addition, this bill requires that upon the transfer of a phone number to a requesting party, the requesting party shall assume all financial responsibility for monthly service costs and costs for any mobile device associated with the wireless telephone number. Staff notes that the responsibility for "costs for any mobile device associated with the wireless telephone number" arguably refers to a device that has, for some reason, not been paid for in full. It may be under an installment plan, leased, or under some other arrangement. The ability of the court to determine the possession and use of a device that is owned outright by the accountholder is provided for under existing law. (See Comment 2 above.) b. Interests of wireless providers While this bill would create an obligation for wireless providers to comply with a court order directing the division of wireless numbers under one contract, providers would be protected from practical, financial, and legal concerns in several ways. First, the bill would provide an immunity for any action that a wireless provider, takes "in accordance with the terms of" an order to transfer billing responsibility and rights for a telephone number, which would protect the AB 1407 (Atkins) Page 7 of ? provider from an action filed by the accountholder for breach of contract. Secondly, the bill would allow a wireless provider to not comply with a court order to transfer phones if the company cannot "operationally or technically effectuate the order," in which case the provider would be required to notify the requesting party within 72 hours. Examples of possible noncompliance circumstances under this bill include where the accountholder has already terminated service, where differences in technology prevent the device from functioning on the network, and where there are geographic or other limitations on network or service availability. Finally, the bill makes clear that the requesting party is responsible for all monthly service costs and any costs associated with a device itself, and would allow a wireless provider to require the requesting party to apply for a new account for the phone(s) like any new customer. If the requesting party does not have the credit worthiness to get a typical monthly service plan, he or she may have to switch to a prepaid plan. Support : AT&T; California Catholic Conference; California College and University Police Chiefs Association; California District Attorneys Association; California Judges Association; California Public Defenders Association; California State Lodge, Fraternal Order of Police; Immigration Center for Women and Children; Legal Aid Society of Orange County; Legal Services of Northern California; Legal Aid Society of San Diego; Long Beach Police Officers Association; Los Angeles County Professional Peace Officers Association; Sacramento County Deputy Sheriffs Association; Santa Ana Police Officers Association; Sprint; T-Mobile; Verizon Opposition : None Known HISTORY Source : Women Escaping a Violent Environment (WEAVE) Related Pending Legislation : None known. Prior Legislation : SB 1158 (Yee, 2014) was similar to this bill. It was never set for hearing. AB 1407 (Atkins) Page 8 of ? Prior Vote : Assembly Floor (Ayes 78, Noes 0) Assembly Appropriations Committee (Ayes 17, Noes 0) Assembly Judiciary Committee (Ayes 10, Noes 0) **************