BILL ANALYSIS � 1
SENATE ENERGY, UTILITIES AND COMMUNICATIONS COMMITTEE
ALEX PADILLA, CHAIR
SB 1160 - Padilla Hearing Date:
April 17, 2012 S
As Amended: April 9, 2012 Non-FISCAL
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DESCRIPTION
Current law makes it a misdemeanor for an agent, operator, or
employee of any telegraph or telephone office to willfully
refuse to transmit a message unless the customer bill is not
paid or the message encourages treason or other unlawful acts or
facilitates escape of a criminal.
Current law authorizes law enforcement to order a cut to a
telephone line to prevent communications where there is probable
cause that a person is holding hostages, committing a crime, or
resisting arrest through use of force.
A California Supreme Court decision held that it is unlawful for
a telephone corporation to interrupt landline telephone service
at the request of law enforcement unless the interruption is
pursuant to a court order based upon a finding that there is
probable cause the service is being used in illegal acts which,
absent immediate interruption, would result in significant
dangers to the public health, safety, and welfare.
Current law and decisions of the Federal Communications
Commission (FCC) require specified providers of communications
service, including landline, wireless, and certain
Internet-based services, to provide customers 911 access to
emergency services.
This bill would prohibit a government entity, and a provider of
communications service acting at the request of a government
entity, from intentionally interrupting communication service
for the purpose of protecting public safety or preventing use of
the service for an illegal purpose except pursuant to a court
order based on a finding of probable cause.
This bill would require that the court order authorizing an
intentional interruption of service include a finding that the
interruption will not suppress speech that is protected by the
First Amendment of the United States Constitution or the free
speech provision of the California Constitution or violate any
other rights under federal or state law.
Current regulations of the California Public Utilities
Commission (CPUC) require landline telephone corporations to
notify a customer of a court order to interrupt service being
used for an illegal purpose and establishes a procedure for the
customer to challenge the interruption.
This bill would require that a communications service provider
that interrupts service pursuant to a court order as required by
this bill also comply with any applicable regulation of the
CPUC, FCC, or both, and any other applicable provision of state
or federal law.
This bill would make legislative findings that protecting
customers' 911 access to emergency services and their means to
engage in constitutionally protected expression is a matter of
statewide concern, thereby preempting local laws or policies
that conflict with this bill.
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
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 percent 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. PUC 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 CPUC rule that
governs providers of landline telephone service (Tariff Rule
31).
BART Policy - In December 2011, the board of directors of the
Bay Area Rapid Transit (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
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.
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, the FCC issued a Public Notice asking for
public comment on 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. The
FCC asked for comment on the legal and policy constraints on
service interruption posed by the First Amendment, federal law
governing communications, and other provisions of federal and
state law. The FCC stated that public input will inform whether
- and if so, what - policy guidance may be appropriate regarding
wireless service interruptions.
COMMENTS
1. Author's Purpose . The author states that the purpose of
this bill is to protect public safety by ensuring 911
access to emergency services and to preserve a free and
open communications system that is critical to democracy.
2. Narrow Focus on Government-Initiated Shutdowns . The
court order required by this bill applies only to service
interruptions by government, or by a provider at the
request of government, for the purpose of protecting public
safety or preventing use of the service for an illegal
activity. It does not apply to service disconnection or
interruption authorized by law or regulation for specified
purposes such as for failure of a subscriber to pay a bill,
maintenance and repair, as directed by the CPUC because of
fraudulent business activity or misuse of automated
dialing-announcing devices, among others. This narrow
focus of the bill is consistent with the FCC's proceeding
seeking to develop federal guidance on government-initiated
shutdown of wireless service.
3. Targets Service Providing 911 Access . This bill seeks to
protect public safety by targeting providers of
communications service that are required to provide their
customers 911 access to emergency services. The bill's
applicability does not distinguish among technologies or
rely on whether or not a service is a "telecommunications
service" under federal law or provided by a "telephone
corporation" under state law. Instead, the bill applies to
any service that the FCC has required to provide 911
access, which includes traditional landline, wireless, and
certain Internet-based services. If the FCC has determined
it is a service where customers expect to be able to call
911 for help during an emergency, then this bill requires a
court order before government can shut down that service.
4. Preempts Conflicting Local Policies . This bill makes
legislative findings that protecting customers' 911 access
to emergency services and their means to engage in
constitutionally protected expression "is a matter of
statewide concern." This language expresses the
Legislature's intent that the bill's provisions apply
statewide and preempt any conflicting local law, including
that of a charter city. For example, the BART policy would
conflict with this bill because it allows BART officials to
determine when circumstances justify a service interruption
without any court order or finding of probable cause.
Thus, if this bill were enacted, the existing BART policy
would be preempted.
5. Timing of Court Order . A letter from the BART General
Manager raises concerns with the bill requiring a court
order prior to shutting down service, stating "I am not
convinced that in a crisis situation there will be enough
time . . . to comply in a timely fashion." The California
Supreme Court, in the 1979 Goldin decision requiring a
court order based on probable cause before interrupting
service, compared the process of getting the court order
for this purpose to that for getting a court order for a
search warrant. Current law authorizes an expedited
procedure for obtaining court orders from a designated
judge on call at all times. Since 2010, electronic
signatures are allowed on warrants, which speed the process
even more. Press reports this month about implementing the
e-signature technology for search warrants in California
state that the process takes only minutes to complete.
6. Guidance from FCC Proceeding . The FCC's Public Notice
seeks input on a wide range of legal, policy, and
operational issues related to shutdown of wireless service.
Comments are due April 30, and reply comments are due
May 30. The author has indicated that these comments and
any FCC guidance based on those comments will help inform
whether this bill needs additional amendments.
7. National Emergencies . CTIA-The Wireless Association
raises a concern whether this bill would interfere with the
federal "Emergency Wireless Protocol" for shutting down
service during national emergencies. This protocol, which
is referenced in the FCC's Public Notice, is not mandatory.
This bill does not distinguish between service shutdowns
that involve a national emergency or not. It would apply
to many potential service shutdowns that do not involve a
national emergency.
8. Double Referral . Should this bill be approved by the
committee, it should be re-referred to the Senate Committee
on Judiciary for its consideration.
POSITIONS
Sponsor:
Author
Support:
American Civil Liberties Union Northern California
California Cable & Telecommunications Association, if amended
California Chapter of the National Emergency Number Association
The Utility Reform Network
Oppose:
None on file
Jacqueline Kinney
SB 1160 Analysis
Hearing Date: April 17, 2012