BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 1160|
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THIRD READING
Bill No: SB 1160
Author: Padilla (D)
Amended: 5/15/12
Vote: 21
SENATE ENERGY, UTILITIES & COMM. COMMITTEE : 13-0, 4/17/12
AYES: Padilla, Fuller, Berryhill, Corbett, De Le�n,
DeSaulnier, Emmerson, Kehoe, Pavley, Rubio, Simitian,
Strickland, Wright
SENATE JUDICIARY COMMITTEE : 5-0, 5/8/12
AYES: Evans, Harman, Blakeslee, Corbett, Leno
SUBJECT : Communications: service interruptions
SOURCE : Author
DIGEST : This bill prohibits 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.
ANALYSIS :
Existing law:
1. Makes it a misdemeanor for an agent, operator, or
CONTINUED
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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.
2. 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.
3. 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.
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 regulations of the Public Utilities Commission
(PUC) 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:
1. Requires 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.
2. Requires that the order shall be narrowly tailored to
the specific circumstances under which the order is made
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and shall not interfere with more communication than is
necessary to achieve the purposes of the order, and any
interruption of service extends only as long as is
reasonably necessary and shall cease immediately once
the danger that justified the interruption is addressed.
3. Requires 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 PUC, FCC, or both, and any other applicable
provision of state or federal law.
4. 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, 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.
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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
serious dangers to public safety. This requirement of a
court order is enshrined in a PUC 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
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appropriate regarding wireless service interruptions.
Comments
According to the author's office, 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 5/16/12)
American Civil Liberties Union Northern California
AT&T
California Cable & Telecommunications Association, if
amended
California Chapter of the National Emergency Number
Association
The Utility Reform Network
OPPOSITION : (Verified 5/16/12)
Police Officers Research Association of California
RM:do 5/16/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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