BILL ANALYSIS 1
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SENATE ENERGY, UTILITIES AND COMMUNICATIONS COMMITTEE
ALEX PADILLA, CHAIR
SB 495 - Benoit Hearing Date:
April 27, 2009 S
As Amended: April 22, 2009 Non-FISCAL
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DESCRIPTION
Current federal law authorizes, but does not require, providers
of communications services to disclose the content of a
communication or other records pertaining to a customer of such
service to a governmental entity if the provider believes that
an emergency involving danger of death or serious physical
injury requires disclosure.
Current state law prohibits telephone corporations from
disclosing a subscriber's personal calling patterns without
first obtaining the residential subscriber's consent in writing.
Violation is grounds for a civil suit. Current law provides
that it is a complete defense against any civil suit when
telephone corporations provide a subscriber's personal calling
patterns in good faith compliance with terms of a court order.
This bill requires cellphone companies to provide call location
information to a law enforcement agency in order for the law
enforcement agency to respond to a call for emergency services
or in an emergency situation that involves the risk of death or
serious physical harm. Nothing prohibits a cellphone company
from establishing a protocol by which the provider may
voluntarily disclose call location information. A cellphone
company shall not be subject to liability when it acts in good
faith in complying with this provision.
BACKGROUND
Unless they are turned off, cellphones can be located by the
cellphone service provider. The cellphone is constantly pinging
the cellphone network so that when its number is dialed, the
cellphone network knows where to send the call. The cellphone
location information is of varying precision, from within tens
of meters to miles depending on the location technology utilized
by the phone and the density of cell sites. (This is less
precise than location information available during a 911 call or
when the cellphone uses its on-board GPS location device.)
Location information can be quite useful, helping customers
locate themselves and nearby stores and friends. Most cellphone
companies sell this technology to help parents keep track of
their children. Free location-based services are also
available.
But the flip side is that in the wrong hands, location
information can be intrusive, even dangerous. Clandestine
tracking and surveillance by government or private entities
would be a gross misuse of this information. Stalkers obtaining
location information of their victims, or abusive spouses
tracking their former mates are just the most obvious abuses of
this technology. For this reason, the availability of location
information is strictly regulated by federal and state law.
COMMENTS
The author believes there are many circumstances when clearly
articulated rules regarding the disclosure of cellphone location
information would serve the public. The author desires to
clarify to law enforcement agencies when, and under what
circumstances, it may obtain customer information. He also
wishes to ensure that the telephone companies, including
specifically the cellular telephone companies, understand those
same rules. The author has cited several cases in which
cellphone companies have failed to provide information on the
location of the cellphone despite warrants or the consent of the
customer, contrary to federal law. The result was unnecessary
injury and harm.
This bill adopts language contained in a similar bill recently
signed into law in Kansas. Because of this the major cellphone
companies do not oppose the bill.
1. Conflict with Federal Law - Federal law authorizes , but
does not require, telephone companies to disclose customer
information, including customer location information, with
the consent of the customer or to a governmental entity, if
the provider, in good faith, believes that an emergency
involved danger of death or serious physical injury to any
person requires disclosure without delay of information
relating to the emergency (18 USCS Section 2702(c)(4)).
This bill requires cellphone companies to disclose location
information to a law enforcement agency under similar
circumstances. This conflict may lead to confusion between
law enforcement agencies and cellphone companies, defeating
the purpose of the bill. Further, the circumstances under
which location information will be disclosed under this
bill are similar to, but not exactly the same as, the
circumstances in federal law. Would it be clearer to adopt
exactly the same circumstances in state law as in federal
law? Finally, federal law may well preempt this law.
Under current practice, the cellphone companies have
established protocols to ensure that location information
is provided only for legitimate purposes under authorized
circumstances. Under this bill nothing prohibits cellphone
providers from establishing protocols by which the provider
may voluntarily disclose call location information. But
the bill establishes conditions under which the providers
must disclose call location information. If the intent of
this section is to authorize cellphone companies to develop
protocols to carry out the mandatory disclosure provisions
then subdivision (b) should be rewritten.
2. California Law May Already Apply - Section 2891 of the
Public Utilities Code governs the conditions under which
customer information may be disclosed. It permits customer
information to be disclosed when information is provided to
an emergency service agency responding to a 911 call or any
other call communicating an imminent threat to life or
property. Some may argue that this section does not apply
to cellphone companies. But if that were true then there
would be no reason to exempt cellphone companies from
liability under this section in Section 2894 of the Public
Utilities Code.
3. Similar Legislation - The author carried similar
legislation in 2006 and 2008. Both AB 1871 and AB 1977
were held in the Assembly Judiciary Committee.
4. Double Referred - This bill has been double referred to
the Senate Judiciary Committee.
POSITIONS
Sponsor:
Los Angeles County Sheriff's Department
Support:
None on file
Oppose:
American Civil Liberties Union
Randy Chinn
SB 495 Analysis
Hearing Date: April 27, 2009