BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 1160 (Padilla)
As Amended April 9, 2012
Hearing Date: May 8, 2012
Fiscal: No
Urgency: No
RD
SUBJECT
Communications: Service Interruptions
DESCRIPTION
Existing law addresses situations in which a law enforcement
official, as specified, has probable cause to believe a person
is holding hostages and is committing a crime, or is barricaded
and is resisting apprehension through the use or threatened use
of force. Under that section, the official may order a
pre-designated telephone company employee to cut, reroute, or
divert lines for the purpose of preventing telephone
communication by the suspected person with anyone other than a
peace officer or authorized person, as specified. This bill
would repeal that provision and instead provide that, a
government entity or service provider, at the request of a
government entity, may not interrupt service unless a judicial
officer issues an order making specified findings. Among these
provisions is that the interruption will not suppress
constitutionally protected speech or violate any other rights
under federal or state law. The bill would provide for immunity
where there is good faith reliance upon such an order, as
specified.
This bill would delete existing law which provides that a
telephone company employee is not required to send, receive, or
deliver a message that counsels, aids or abets, or encourages
treason, as specified, or instigates or encourages the
perpetration of any unlawful act, among other things.
BACKGROUND
(more)
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Last July, Bay Area Rapid Transit (BART) police at the Civic
Center station fatally shot a homeless man, Charles Blair Hill,
who was reportedly intoxicated and carrying a knife. (Fagin,
Man Shot to Death by BART Police Identified, S.F. Chronicle
(Jul. 8, 2011)
< http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/07/07/BA9U
1K7O2C.DTL > �as of May 1, 2012].)
In response, on July 11, approximately 100 people gathered at
the Civic Center platform in protest and obstructed rush-hour
traffic, blocking the doors to the trains and forcing BART to
shut down the station and two nearby stations as well. (Ho,
BART: Next Time "Zero" Tolerance for Disruptions, S.F. Chronicle
(Jul. 13, 2011)
< http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/07/12/BAP5
1K9JQR.DTL > �as of May 1, 2012].) Delays to trains reportedly
averaged only seven minutes, but commuters experienced
substantial delays from missing train connections. (Id.) The
group behind the protest had initially formed two years prior,
in protest of the death of another (unarmed) passenger, Oscar
Grant, who was shot on January 1, 2009 by a BART officer. The
ultimate goal of the group was seemingly to disband the BART
police force, but in the short term (at the time of the
protest), it wanted the transit agency to release video of the
incident that resulted in Hill's shooting. (Id.)
A month after the first protest, on August 11, 2011, BART shut
down subterranean cell service at San Francisco stations to
thwart a second protest, citing plans of organizers to disrupt
BART service using "mobile devices to coordinate their
disruptive activities and communicate about the location and
number of BART Police." (See BART Press Release, Statement on
Temporary Wireless Service Interruption in Select BART Stations
on Aug. 11 (Aug. 12, 2011)
< http://www.bart.gov/news/articles/2011/news20110812.aspx > �as
of May 1, 2012].) This blackout was reportedly the first of its
kind in the nation. (Buchanan, Bill Bars Cell Service Shutdown
by Public Agencies, S.F. Chronicle (Apr. 12, 2012)
< http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/04/18/MNQM
1O5B1R.DTL > �as of May 1, 2012].)
Wireless-enabled devices facilitate many types of First
Amendment-protected speech, from discussing family dinner plans,
to scheduling business meetings, to seeking assistance, to
making plans to engage in political discourse, and otherwise.
The importance of wireless devices to social and political
discourse and to the free expression of public dissatisfaction
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with those in power has been highlighted in the last several
years. From Iran to Egypt to Syria, the world has witnessed the
importance of mobile devices and connection to the Internet to
people seeking to challenge the acts or authority of their
government. These devices can be vital to social and political
speech, which is at the core of the First Amendment.
At the same time, cellular phones raise somewhat novel questions
with respect to government regulations and First Amendment law,
particularly with respect to the question of the ability of the
government to target specific wireless lines that are tied to a
suspected imminent threat. (See the Federal Communications
Commission's public notice, GN Docket No. 12-52.) Whether
wireless service can be shutdown in a targeted fashion
equivalent to disconnection of landline services is a subject of
current concern; interruption of wireless service could, as a
matter of infrastructure, require shutting down service for a
much larger geographic area than with landlines and,
resultantly, infringe on the protected speech of bystanders in
the area as well.
Recognizing the significant legal and policy questions and
concerns surrounding this issue, on March 1, 2012, the Federal
Communications Commission (FCC) issued a notice seeking public
comment on certain wireless service interruptions, indicating
that national rules may be issued on this matter in the near
future. The FCC indicated it was seeking public comment, in
part, because of a public agency that temporarily interrupted
wireless service on parts of a mass transit system based on
stated concerns about public safety. (GN Docket No. 12-52.)
Public comments were due April 30, 2012, with replies expected
May 30, 2012.
This bill would delete existing law sections allowing for
disconnection of services, except for disconnection that is for
lack of payment of charges, and would repeal all provisions
relating to disconnection of services by government officials.
It would instead prohibit service interruption by a government
entity or service provider, at the direction of a government
entity, unless an order is provided by a judicial officer, as
defined, making specified findings. Those required findings
are: (1) that there is probable cause that the service is being
or will be used for an unlawful purpose or to assist in a
violation of the law; (2) that absent immediate and summary
action to interrupt service, significant danger to public
health, safety or welfare will result, and (3) that the
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interruption would not suppress constitutionally protected
speech or violate other rights under federal or state law. The
bill would also provide that good faith reliance upon an order
of a judicial officer authorizing the interruption of
communications service, as specified, shall constitute a
complete defense against any action brought as a result of the
interruption as directed by that order.
On April 17, 2012, this bill passed the Senate Committee on
Energy, Utilities & Communications on a 13-0 vote.
CHANGES TO EXISTING LAW
1. Existing law provides that every agent, operator, or
employee of any telegraph or telephone office who willfully
refuses or neglects to send, transmit, or deliver any message,
as specified, is guilty of a misdemeanor. Existing law
provides that this does not require any message to be
received, transmitted or delivered, unless the charges thereon
have been paid or tendered. Existing law also provides that
this does not require the sending, receiving or delivery of
any message that, among other things, counsels, aids or abets,
or encourages treason against the United States or California
government, or other resistance to the lawful authority, or
that instigates or encourages the perpetration of any unlawful
act. (Pub. Util. Code Sec. 7904.)
This bill retains the above-described requirements and the
provision that those
requirements are not applicable where payment for charges
have not been paid or
tendered, but deletes the other remaining provisions.
2. Existing law , the U.S. 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. Const., 1st Amend., as applied to the states through the
14th Amendment's Due Process Clause; see Gitlow v. New York
(1925) 268 U.S. 652; See also Cal. Const. art. I sec. 2, which
states a law may not restrain or abridge liberty of speech or
press.)
Existing case law provides that constitutional protection does
not turn upon "the truth, popularity, or social utility of the
ideas and beliefs which are offered" and recognizes a
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"profound national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide-open,
and that it may well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public
officials." (New York Times v. Sullivan (1964) 376 U.S. 254,
270-271, citations omitted.)
Existing case law provides that prior restraints on speech
bear a "heavy presumption" of unconstitutionality. (Bantam
Books, Inc. v. Sullivan (1963) 372 U.S. 58, 70; New York Times
v. U.S. (1971) 403 U.S. 713, 714.) 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." (Near v. Minnesota
(1931) 283 U.S. 697, 721-722.)
Existing law provides that, notwithstanding other specified
sections, whenever the supervising law enforcement official
has probable cause to believe that a person is holding
hostages and is committing a crime, or is barricaded and is
resisting apprehension through the use or threatened use of
force, such official may order a pre-designated telephone
company employee to arrange to cut, reroute, or divert
telephone lines for the purpose of preventing telephone
communication by such suspected person with anyone other than
a peace officer or a person authorized by the peace officer.
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 this section. Existing law also
requires that the telephone company designate an employee and
an alternate to provide all required assistance to law
enforcement officials to carry out the purposes of this
section. (Pub. Util. Code Sec. 7907.)
This bill would repeal the above-described section and instead
provide that no government entity or service provider at the
request of a government entity shall interrupt communications
service, except pursuant to an order by a judicial officer
making the following findings:
that there is probable cause that the service is being
or will be used for an unlawful purpose or to assist in a
violation of the law;
that absent immediate and summary action to interrupt
service, significant danger to public health, safety or
welfare will result; and
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that service interruption will not suppress
constitutionally protected speech or violate any other
rights under federal or state law.
This bill would contain various definitions, including, among
others, that "government entity" means every local government,
including a city, county, city and county, a transit, joint
power, special, or other district, the state, and every
agency, department, commission, board, bureau, or other
political subdivision of the state.
This bill would provide that good faith reliance upon an order
of a judicial officer authorizing the interruption of
communications service pursuant to the above requirements,
shall constitute a complete defense against any action brought
as a result of the interruption to communications service as
directed by that order.
This bill would declare a Legislative finding that it is a
matter of statewide concern to ensure that California users of
any communications service not have that service interrupted,
and thereby be deprived of 911 access to emergency services or
a means to engage in constitutionally protected expression.
COMMENT
1. Stated need for the bill
According to the author:
SB 1160 protects public safety by ensuring customers can
access the telecommunications network and call 911 in an
emergency. The bill also protects the public's First
Amendment right to use cell phones and other communications
services for any lawful purpose without censorship or prior
restraint of speech from intentional shutdown of service. . .
. SB 1160 addresses the fact that current statutory law has
not been updated to reflect modern communications technology
and the probable cause standard established by the California
Supreme Court. In addition, it is intended to preempt any
conflicting local policy allowing service interruption on a
lesser standard without court review.
In years past, landline telephone service was the only widely
available means of connecting to the public telephone network
and calling 911 in an emergency. Now, growing numbers of
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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 contacting 911 for
emergency assistance. According to the FCC �Federal
Communications Commission], about 70 percent of all 911 calls
are made from a wireless phone.
�Additionally,] the introduction of SB 1160 has facilitated a
statewide discussion of the critical issues posed by service
interrupts in the context of today's 21st Century
telecommunications network, especially given the enormous
power of modern services for public safety and democracy. As
noted by the FCC, "�w]e are concerned that there has been
insufficient discussion, analysis, and consideration of the
questions raised by intentional interruptions of wireless
service by government authorities."
In support of this bill, the American Civil Liberties Union
(ACLU) writes, "SB 1160 takes a measured approach to protect
First Amendment speech while permitting the interruption of
communications services based on Constitutional standards. To
ensure public safety or preventing the use of the communications
service for illegal purposes, the magistrate would have to find
the existence of probable cause that (1) the service is being or
will be used for an illegal purpose, (2) there is significant
danger to the public health, safety or welfare, and (3) the
California and Federal Constitutions will not be violated."
2. First Amendment considerations of wireless service
interruptions
This bill would provide that no government entity or service
provider at the request of a government entity shall interrupt
communications service, except where a judicial officer provides
an order that makes specified findings, including that the
interruption of service would not suppress constitutionally
protected speech or violate any other rights provided for under
federal or state law.
The U.S. Constitution's First Amendment protects the right to
freedom of speech, press, assembly, and to petition the
government for a redress of grievances, in addition to freedom
of religion. (U.S. Const., 1st Amend, as applied to the states
through the 14th Amendment's Due Process Clause; See Gitlow v.
New York (1925) 268 U.S. 652; See also Cal. Const. art. 1 Sec.
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2, which states a law may not restrain or abridge liberty of
speech or press.)
In the case of Whitney v. California (1927) 274 U.S. 357, 375,
U.S. Supreme Court Justice Louis Brandies discussed the
importance of the protections afforded by the First Amendment
against government regulations: "Those who won our independence
� . . . ] valued liberty both as an end and as a means. � . . .
] They recognized the risks to which all human institutions are
subject. But they knew that order cannot be secured merely
through fear of punishment for its infraction; that it is
hazardous to discourage thought, hope, and imagination; that
fear breeds repression; that repression breeds hate; that hate
menaces stable government; that the path of safety lies in the
opportunity to discuss freely supposed grievances and proposed
remedies; and that the fitting remedy for evil counsels is good
ones." (J. Brandies concurring.)
Though "the Supreme Court has never accepted the view that the
First Amendment protects all government regulation of
expression," (Chemerinksy, Constitutional Law Principles and
Policies (2006) 3rd Edition, pp. 924-925) it has recognized that
the ability to criticize government and government officers is
"the central meaning of the First Amendment." (New York Times v.
Sullivan (1964) 376 U.S. 254, 273.) In the BART incident last
year, BART's concern appeared to center on potential public
safety issues, based on information that protestors would use
cell phones to "coordinate their disruptive activities and
communicate about the location and number of BART Police." (See
BART Press Release, Statement on Temporary Wireless Service
Interruption in Select BART Stations on Aug. 11 (Aug. 12, 2011)
< http://www.bart.gov/news/articles/2011/news20110812.aspx > �as
of May 1, 2012].) In the case of Brandenburg v. Ohio (1969) 395
U.S. 444, 447, the U.S. Supreme Court made clear that speech can
lose its protection under rare circumstances when it (1)
involves the likelihood of imminent lawless action and (2) is
directed at inciting or producing that imminent lawless action.
Prior restraints of such speech by the government, however,
raise other issues.
Relevant case law has shown that the "proper response to
potential and actual violence" (or public safety concerns
arising out of protests such as those seen during last summer at
San Francisco BART stations), "is for the government to ensure
an adequate police presence . . . and to arrest those who
actually engage in such conduct, rather than to suppress
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legitimate First Amendment conduct as a prophylactic measure."
(Collins v. Jordan (1997) 110 F.3d. 1363, 1372, citing Cox v.
Louisiana (1965) 379 U.S. 536, 551 and Kunz v. New York (1951)
340 U.S. 290, 294-295.)
This bill would make clear throughout the state that a
government entity or service provider pursuant to a government
entity's request may not interrupt service, unless there is an
order by a judicial officer making specified findings, including
that the interruption would not suppress constitutionally
protected speech. This standard appears to require that the
judicial officer consider all of this and other First Amendment
jurisprudence in making that determination. Ultimately, should
this bill be enacted, its constitutionality is an issue for the
courts, though for the reasons discussed below, it appears this
bill would not provide for prior restraints in violation of
First Amendment law.
a. Prior restraints
The importance of cellular phones to a person's exercise of
free speech in a modern world cannot be understated. To allow
for a judicial officer to issue an order authorizing the
interruption of service, and thereby disconnect these avenues
for communication, is a form of prior restraint. Government
may not decide in advance what is good speech or bad speech,
right speech or wrong speech, worthy speech or unworthy
speech. The Supreme Court has made clear on numerous
occasions that prior restraints on speech bear a "heavy
presumption" of unconstitutionality. (See e.g. Bantam Books,
Inc. v. Sullivan (1963) 372 U.S. 58, 70; New York Times v.
U.S. (1971) 403 U.S. 713, 714.) The Court has also stated
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." (Near v. Minnesota
(1931) 283 U.S. 697, 721-722.) The Court in Near, however,
stopped short of declaring all court orders prohibiting speech
as unconstitutional. It stated instead that these injunctions
would be allowed "only in exceptional cases." (Id. at 716.)
Recent case law demonstrates that there are two illustrations
that meet the extreme circumstances envisioned by the Supreme
Court that would justify a prior restraint, if ever. "The
United States Supreme Court has offered . . . of the sort of
'exceptional' situations in which a prior restraint might be
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justified: to prevent the dissemination of troop movements
during wartime or to 'suppress � ] . . . information that
would set in motion a nuclear holocaust.'" (Freedom
Communications Inc. v. Superior Court (2008) 167 Cal.App.4th
150, 153, citing Near v. Minnesota, supra, 283 U.S. 697, 716
and New York Times v. U.S (1971) 403 U.S. 713, 726 (J. Brennan
concurring).)
Therefore, a circumstance such as that seen by BART last year,
or even speech that could be described as incitement under
Brandenburg v. Ohio (1969) (395 U.S. 444, 447) (directed at
inciting or producing imminent lawless activities that are
likely to incite that action), arguably would not justify a
prior restraint, but rather, would call for police presence to
arrest those who indeed violate the law. The Supreme Court
has held even the statement, "If we catch any of you going in
any of them racist stores, we're gonna break your damn neck,"
is protected by the First Amendment under Brandenburg, even
where violence did ultimately result to some people who did
not abide by the boycott. The Court explained that "�i]n the
passionate atmosphere in which speeches were delivered, they
might have been understood as inviting an unlawful form of
discipline or, at least, intending to create a fear of
violence whether or not improper discipline was specifically
intended. . . . This Court has made clear however, that mere
advocacy of the use of force or violence does not remove
speech from the protection of the First Amendment. . . . The
emotionally charged rhetoric . . . did not transcend the
bounds of protected speech set forth in Brandenburg." (NAACP
v. Claiborne Hardware Co. (1982) 458 U.S. 886, at 927-928,
emphasis in original; see Chemerinksy, supra, p. 1000.)
Before an order could be given to interrupt service, this bill
would require a judicial officer first find that there is
probable cause that the service is being or will be used for
an unlawful purpose or to assist in a violation of the law;
and second, that absent immediate and summary action to
interrupt service, significant danger to public health, safety
or welfare will result. This bill would also, however,
require a third finding that the interruption would not
suppress constitutionally protected speech. Together, these
would presumably require not only that the service be tied to
an unlawful purpose or to assist in a violation of law, as
described, but also that the danger to public safety that
would result absent immediate action would meet the standard
of "exceptional" circumstances to justify a prior restraint.
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Additionally, the interruption required would be sufficiently
narrowly tailored. (See Comment 2b below.) All other factors
that are relevant to determining whether the interruption
would unconstitutionally suppress speech would need to also be
met.
Thus, the First Amendment jurisprudence described in this
Comment suggests that a scenario in which evidence shows a
cell phone is being used or will be used to, for example,
detonate a bomb, would likely rise to the level justifying an
order by a judicial officer, assuming that other elements of a
First Amendment analysis are met. In contrast, a scenario in
which a person has encouraged illegal acts by others-whether
or not it rises to the levels indicated in Brandenburg and
Claiborne Hardware-while potentially significant, would
arguably be insufficient to justify the interruption of
service under the First Amendment.
To help make clear that this bill is intended to cover those
exceptional circumstances in which the danger that might arise
to the public safety is serious (including scenarios in which
a hostage is taken or a cell phone might be used as an
explosive), but not those scenarios in which speech incites
illegal activity that poses only "significant" danger (which
could mean property damage, as opposed to death), the
following amendment is suggested:
Suggested amendment :
On page 5, line 5, strike "significant" and insert
"serious"
On page 5, line 5, strike "health,"
On page 5, line 6, strike ", or welfare"
b. Requirement that any law regulating speech be narrowly
tailored
The U.S. Supreme Court has also stated that any court order
regulating speech must be narrowly tailored and "'burden no
more speech than necessary' to accomplish its objective."
(Madsen v. Women's Health Center (1994) 512 U.S. 753, 765; see
also Carrol v. President and Comm'rs of Princess Anne (1968)
393 U.S. 175, 183, stating that an injunction issued in the
area of First Amendment rights must be "couched in the
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narrowest terms that will accomplish the pin-pointed objective
permitted by constitutional mandate and the essential needs of
the public order.")
As a matter of practicality, it is not clear that interruption
of communications services, when involving wireless services,
can be sufficiently narrowly tailored as required to surpass a
First Amendment analysis. Still this bill requires, among
other things, that a finding be made that any interruption in
service will not suppress constitutionally protected speech.
While this suggests that the judicial officer would need to
consider whether or not the interruption would be narrowly
tailored in determining whether or not to issue an order, this
bill should make that requirement explicitly clear, so as to
better ensure against any unnecessary infringement upon
people's protected speech. As such, the following amendment
is suggested:
Suggested amendment :
On page 5, after line 10, insert "(c) The order shall be
narrowly tailored to the specific circumstances under which
the order is made and shall not interfere with more
communication than is necessary to achieve the purposes of
the order."
To also ensure that interruption is for no longer than
absolutely necessary to achieve the goal of addressing the
threat to public safety, the following is also suggested:
Suggested amendment :
On page 5, before line 11, insert "(d) Any interruption of
service shall extend only as long as is reasonably
necessary and shall cease immediately once the danger that
justified the interruption is addressed."
c. Vagueness or overbreadth concerns
First Amendment jurisprudence also requires that any statute
restricting speech not be vague such that a reasonable person
cannot understand what speech is prohibited or permitted, or
overly broad such that it regulates substantially more speech
than the U.S. Constitution allows to be regulated. This bill
would prohibit a government entity or service provider, at the
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request of a government entity, from interrupting service,
except where a judicial officer provides an order that makes
the following findings (1) there is probable cause that the
service is being or will be used for an unlawful purpose or to
assist in a violation of the law; (2) absent immediate and
summary action to interrupt service, significant danger to
public health, safety or welfare will result; and (3) service
interruption will not suppress constitutionally protected
speech or violate any other statutory rights.
This arguably makes clear that the government is not to
interrupt communications services, except in those exceptional
circumstances in which it is clear that there is probable
cause that the service is being used to engage in or assist in
an unlawful purpose, and that serious danger would result.
Even then, interruption would not be permissible where it
would infringe upon constitutionally protected speech or other
statutory rights.
With respect to overbreadth, specifically, in requiring that
the judicial officer find that the interruption would not
suppress constitutionally protected speech, the bill would
arguably inherently prohibit any interruptions that would
result in the suppression of more speech than is
constitutionally permitted. (Though, as a practical matter,
whether the capability exists to interrupt wireless service in
a sufficiently narrow manner still remains to be seen.) With
the amendments suggested in Comments 2a and 2b above, this
would be even more so the case.
d. Content-neutral versus content-based restrictions
The U.S. Supreme Court has frequently made clear that at the
very core of the First Amendment is the principle that the
government may not regulate speech based on its content, and
that content-based restrictions are presumptively invalid.
(See RAV v. City of St. Paul (1992) 505 U.S. 377, 382.) The
concern here is that government will target particular
messages and attempt to control thoughts through regulation of
speech. Especially where the government attempts to regulate
speech in public places, the law must be subject matter
neutral. As such, these types of restrictions are subject to
strict scrutiny. This general rule, however, does not apply
to certain categories of speech that are considered
unprotected or less protected by the First Amendment, such as
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obscenity, defamation, or even incitement.
A law may be deemed content-based whether it is a viewpoint
regulation or a subject matter regulation. In other words, to
be content-neutral, it must be neither of these things. A law
regulating speech is content-neutral if it applies to all
speech regardless of the message. A law making picketing
unconstitutional, except if it is labor picketing, would be
content-based. A law prohibiting anti-war protests would be
content-based as a viewpoint regulation as well. So, too,
would a law that prohibits any speech about war (subject
matter regulation). In contrast, a law prohibiting the
posting of all signs on public utility poles would be
content-neutral.
This bill appears to be content-neutral as it would apply to
any scenario in which interruption of communications services
is sought in the interest of public safety-whether they arise
out of a protest on any subject matter, hostage situations, or
otherwise. Ultimately, the constitutionality of this statute
is an issue for the courts.
3. The immunity provided by this bill for any good-faith
reliance upon a judicial order requires additional specificity
and narrowing
This bill currently provides that any good faith reliance upon
an order of a judicial officer authorizing the interruption of
communications service pursuant to the above requirements shall
constitute a complete defense against any action brought as a
result of the interruption to communications service as directed
by that order. Existing law provides a similar good faith
defense to any law enforcement official who disconnected service
after finding probable cause exists that a person is holding
hostages and is committing a crime, or is barricaded and is
resisting apprehension through the use or threatened use of
force.
This bill's good-faith immunity provision, however, does not
specify to whom the immunity is provided. Providing such
immunity is of concern, particularly where it bars the people
injured by having their free speech infringed upon from seeking
recovery in court. While it is important to provide that
security to communications providers who are required to shut
down the wireless service per a judicial officer's order at the
request of law enforcement, it is important to not bar suit
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against anyone other than those providers who are served with
the order, including the law enforcement entity who requested
the order and provided the information upon which it was based.
The following amendment is suggested to address this issue:
Suggested amendment :
On page 5, line 19, after "defense" insert "for any
communications service provider served with an order that
meets the requirements of that subdivision"
4. Federal Communications Commission's comments pending
As noted in the Background, the FCC is currently reviewing
comments received on the issues of legal and policy questions
raised by the interruption of communications services, as seen
with the BART shutdown of subterranean cell service last August,
and may issue national rules to address those concerns. The
author has indicated that the resulting FCC guidance will help
inform whether this bill needs additional amendments.
This Committee may wish to rehear this bill if substantive
amendments are taken.
5. BART's position and policy
BART writes that "the goals of the BART policy and SB 1160 are
similar in ways that can allow us to work together to pass
legislation that will protect transit riders and not interrupt
cellular service except under the most severe circumstances. . .
. �BART's] primary concern with the proposed process outlined
in SB 1160, however, rests with the requirement that an order
signed by a magistrate must accompany any decision seeking to
terminate illegal activities. As . . . an open public transit
system that carries over 370,000 riders every weekday, this
requirement deeply troubles �BART]. While �BART] understands
�the author's] goal to rightly protect cell phone users who
might need to call 911 �it] is also responsible to �its] riders
who could actually become the victims of the cellular
technology-triggering the ignition of an expose for example.
�BART] is not convinced that in a crisis situation there will be
enough time, with the magistrate order requirement in your
legislation, to comply in a timely fashion."
In contrast to this bill, BART's new policy would provide, in
relevant part, that "the District may implement a temporary
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interruption of operation of the System Cellular Equipment only
when it determines that there is strong evidence of imminent
unlawful activity that threatens the safety of District
passengers, employees, or other members of the public, the
destruction of District property, or the substantial disruption
of public transit services; that the interruption will
substantially reduce the likelihood of such unlawful activity;
that such interruption is essential to protect the safety of
District passengers, employees and other members of the public,
to protect District property or to avoid substantial disruption
of public transit services; and that such interruption is
narrowly tailored to those areas and time periods necessary to
protect against the unlawful activity. . . . Any decision to
implement a temporary interruption must be pursuant to a
determination that the public safety benefits outweigh the
public safety risks of an interruption." �Emphasis in
original.]
As seen with the shutdown authorized by BART last year, it is
not clear that such a policy would be in accord with the First
Amendment, and raises a host of concerns. As a matter of public
policy, the First Amendment rights of hundreds, if not
thousands, of people should not be unconstitutionally sacrificed
for fear of disruption to service or even damage to property.
The proper response in such scenarios, arguably, is to have
police presence to arrest those who violate the law. Such a
policy, therefore, does not appear to be a viable alternative to
this bill under the First Amendment as it does not adequately
protect against infringement on constitutionally protected
speech in a fashion similar to this bill. This bill also
arguably emphasizes the public interest in creating a statewide
rule that appropriately protects First Amendment rights above
all other rights subject to extreme circumstances that have been
provided for under Supreme Court jurisprudence. To the extent
that the author takes amendments to address the particularized
concern of BART and other law enforcement officials (see Comment
7, below), this Committee may wish to rehear this bill if those
amendments would have an impact on First Amendment rights.
6. Additional issues raised
The CTIA-Wireless submitted a letter describing the need for any
state policy to be mindful of the process created by the
President's National Security Telecommunications Advisory
Committee (NSTAC) taskforce which led to the development of a
protocol in March of 2006, for shutting down commercial and
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wireless network connections during national crisis.
Information submitted by the author to this Committee indicates
that this protocol is not mandatory and does not distinguish
between service shutdowns that involve a national emergency or
not, but that the author is engaging in discussions with the
Governor's office on this issue, and ultimately seeks to respect
the confidential national security aspects of this protocol.
Committee staff notes that this protocol has never been
subjected to review for its constitutionality by the U.S.
Supreme Court, nor is a federal law that might suggest
preemption issues.
California Cable & Telecommunications Association (CCTA) writes
that "SB 1160 eliminates existing law that currently authorizes
disconnection for the delivery of a message that aids or abets
treason, or other resistance to lawful authority, or any message
calculated to further any fraudulent plan or purpose or to
instigate or encourage perpetration of any lawful act, or
facilitate the escape of any criminal or person accused of a
crime. SB 1160 only allows disconnection for nonpayment of
service. CCTA's members provide advanced digital voice services
throughout California and at times must disconnect service for
maintenance, repairs, and for reasons of fraudulent use of the
network. . . . " CCTA's letter reflects a support if amended
position.
The author states that it has met with CCTA and explained the
narrow scope of his bill, and that "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 �California
Public Utilities Commission] because of fraudulent business
activity or misuse of automated dialing-announcing devices,
among others."
7. Opposition concerns
The Peace Officers Research Association of California (PORAC)
writes, "This bill would restrict the ability of a law
enforcement agency to shut down service during an exigent
circumstance, such as a riot or demonstration, where it has
become a common practice of the agitators to use cell phones and
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other wireless devices to communicate and to instigate. Also,
it prohibits shutting down service during a SWAT incident. This
bill does allow this to be done under the order of a magistrate,
but oftentimes in these emergency situations officers simply
don't have the time to go through those channels."
Information provided by the author demonstrates that in 2010,
California law was amended to allow for electronic signatures to
be used for warrant authorization, reducing the need for an
officer to travel from his or her location to a judge's home or
office. (AB 2505 (Strickland, Ch. 98, Stats. 2010) allowed a
magistrate's signature to be made in the form of a digital
signature or electronic signature if electronic mail or computer
server is used for transmission of a search warrant to the
magistrate.) This can significantly reduce the time it takes to
physically transport documents during the process of obtaining a
search warrant.
Support : American Civil Liberties Union of Northern California
(ACLU); AT&T (support in concept); California Cable &
Telecommunications Association (support if amended); California
Chapter of the National Emergency Number Association (CALNENA);
The Utility Reform Network (TURN)
Opposition : Police Officers Research Association of California
(PORAC)
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote : Senate Committee on Energy, Utilities &
Communications (Ayes 13, Noes 0)
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