BILL ANALYSIS �
SB 1160
Page 1
Date of Hearing: July 3, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 1160 (Padilla) - As Amended: June 19, 2012
As Proposed to be Amended
SENATE VOTE : 32-0
SUBJECT : Communications: Service Interruptions
KEY ISSUE : Should a government entity be prohibited from
shutting down phone or other communications service without a
court order that sets forth the circumstances that justify such
an extreme action?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill is a response to actions that Bay Area Rapid Transit
(BART) officials took to cut off wireless service at some BART
stations in order to preempt the efforts of persons organizing
protests at those stations. BART's actions raised a number of
public safety and First Amendment concerns. For example, while
the BART action apparently targeted protestors, cutting off cell
phone service throughout the stations endangered public safety
by denying all BART passengers - not just protesters - access to
911 emergency services. Moreover, BART actions raised serious
First Amendment concerns by imposing burdens on the ability of
citizens to organize a peaceful protest in a public forum on a
matter of public concern. Existing law prohibits a telephone
company from refusing service or delivery of a message, except
when a customer has failed to pay charges or where it is
necessary to prevent some unlawful act. Existing law also
permits law enforcement to order a telephone company to
interrupt service in a hostage situation. This bill would
delete and recast those provisions. Specifically, this bill
would prohibit a governmental entity - or a communications
service provider acting at the request of a governmental entity
- from interrupting communications service unless it obtains a
court order that makes findings showing why the gravity of the
situation justifies the interruption of services. Under rare
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circumstances, a governmental entity could interrupt services
prior to obtaining a court order, but only if the order is
subsequently applied for without delay. The author has worked
diligently with all stakeholders to craft a bill that protects
public safety and free speech rights, while at the same time
recognizing that under rare circumstances cutting off
communications service might be an appropriate action, so long
as the action is narrowly tailored to those circumstances. The
author will take amendments in this Committee which address a
few remaining concerns of stakeholders. The following analysis
reflects these amendments. There is no registered opposition to
this bill.
SUMMARY : Prohibits a government entity, or any communication
service provider acting at the request of a government entity,
from interrupting communication services for the purpose of
protecting public safety or preventing the use of communication
services for an illegal purpose, pursuant to a court order, as
specified. Specifically, this bill :
1)Prohibits a governmental entity, or a communications service
provider acting at the request of a governmental entity, from
interrupting communications service for the purpose of
protecting public safety or preventing the use of
communications service for an illegal purpose, except pursuant
to an order signed by a judicial officer that includes all of
the following findings:
a) There is probable cause to believe that the service is
being or will be used for an unlawful purpose or to assist
in a violation of the law.
b) That absent immediate and summary action to interrupt
service, serious, direct, immediate, and irreparable danger
to public safety will result.
c) That interruption of service will not suppress speech
protected by the U.S. and California constitutions, or
violate any other rights under federal or state law.
2)Requires that a judicial order issued pursuant to the above
shall clearly describe the specific service to be interrupted
with sufficient detail as to customer, cell sector, central
office, or geographical area affected; shall be narrowly
tailored to the circumstances; and shall not interfere with
more communication than is necessary to achieve the purposes
of the order. Specifies that the order shall authorize
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interruption of service only for as long as is reasonably
necessary; shall require that the interruption cease once the
underlying danger justifying the order has abated; and shall
specify a process to immediately serve notice on the
communication provider to cease the interruption.
3)Provides that if an order to interrupt service, or a statement
of intent to seek such an order, falls within the federal
Emergency Wireless Protocol, it shall be served upon the
California Emergency Management Agency. Specifies that all
other orders to interrupt service, or statements of intent to
obtain such an order, shall be served upon the communications
service provider's contact for receiving requests from law
enforcement, as specified.
4)Provides that nothing this bill curtails a governmental entity
from reliance on judicially recognized exceptions to the
prohibition on prior restraints of speech. If a governmental
entity determines that it must rely on a judicially recognized
exception because the circumstances justify an interruption of
communications service without first obtaining an order, the
governmental entity shall do all of the following:
a) Apply for a court order without delay, and in no event,
later than one hour after the interruption of
communications services.
b) Provide the service provider with a statement of intent
to apply for a court order signed by an authorized official
of the governmental entity. The statement of intent shall
clearly describe the specific service to be interrupted
with sufficient detail as to the customer, cell sector,
central office, or geographical area affected.
c) Provide conspicuous notice of the application for a
court order authorizing the service interruption on its
Internet website without delay, unless the circumstances
that justify an interruption of services without first
obtaining a court order also justify not providing the
notice.
5)Requires a service provider that intentionally interrupts
communications service, pursuant to the provisions of this
bill, shall comply with any rule or notification requirement
of the Public Utilities Commission (PUC) or the Federal
Communications Commission (FCC), or both, and any other
applicable requirement of state or federal law.
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6)Provides that good faith reliance by a communications service
provider upon a judicial order, or upon a statement of intent
that the governmental entity asserts meets the requirements of
this bill, shall constitute a complete defense for any
communications service provider against any action brought as
a result of the interruption of communications service as
directed by that order or statement.
7)Finds and declares that ensuring the ability of users of
communication services to access 911 emergency services or
engage in constitutionally protected speech is a matter of
statewide concern and not a municipal affair, as that term is
used in Section 5 of Article XI of the California
Constitution.
EXISTING LAW :
1)Provides that an agent, operator, or employee of a telegraph
or telephone office who willfully refuses or neglects to send
a message received by the office is guilty of a misdemeanor.
Specifies, however, that nothing in this provision shall be
construed to require delivery of a message in any of the
following situations:
a) Charges for delivery have not been paid or tendered.
b) The message counsels, aids, abets, or encourages treason
against the government of the United States or this state,
or resistance to any lawful authority.
c) The message is calculated to further any fraudulent plan
or purpose, or to instigate or encourage the perpetration
of unlawful acts, or to facilitate the escape of any
criminal or person accused of a crime. (Public Utilities
Code Section 7904.)
2)Provides that whenever a 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 previously designated
telephone corporation security employee to arrange to cut,
reroute, or divert telephone lines for the purpose of
preventing telephone communication by such suspected person
with any person other than a peace officer or a person
authorized by the peace officer. (Public Utilities Code
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Section 7907.)
COMMENTS : In August of 2011, BART officials shut down wireless
services - including cell phone services - for about three hours
in several BART stations in order to preempt and frustrate the
organizational efforts of persons who planned to demonstrate at
BART stations. Specifically, they were protesting the fatal
shooting of a passenger by BART police. The effort to thwart
criticism of BART police actions only served to generate more
widespread criticism and eventually caused BART to close four
train stations instead of continuing the policy of cutting
wireless and cell phone service. (See e.g. "BART backs off
tactic of cutting cellphone service to thwart protests."
Christian Science Monitor August 16, 2011.) In December of
2011, BART's board of directors adopted a policy that specified
when mobile wireless service could be shut down. The policy
left it up to BART officials to determine if there was
sufficiently strong evidence of imminent unlawful activity,
threats to public safety, or other forms of disruption that
would justify interrupting service.
With this bill, the author hopes to clarify the legal and policy
questions raised by BART's actions and its subsequently adopted
policy. To begin with, this bill would not permit BART, or any
other governmental entity, to unilaterally determine when
interruption of communications service is justified. Instead,
this bill would prohibit a governmental entity, or service
provider acting at the request of a governmental entity, from
interrupting any communications service without a judicial
order. Moreover, a judge could only issue such an order after
making all of the following findings: (1) there is probable
cause that the service will be used for an unlawful purpose or
to assist in a violation of the law; (2) that absent immediate
interruption of services serious, direct, immediate, and
irreparable danger to public safety will result; and (3) that
interruption of communications service will not suppress speech
protected by the U.S. and California constitutions, or violate
any other rights under federal or state law.
Under rare circumstances, a governmental entity could proceed to
order an interruption of services without first obtaining an
order, but only if it applies for an order "without delay," and,
in any event, not less than one hour after ordering the
interruption of service. In addition, under these
circumstances, the governmental entity would be required to
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serve the provider with a "statement of intent" to obtain such
an order. In response to concerns raised by communications
service providers, the author has taken several amendments - and
will take further amendments in this Committee today - to
clarify the details of this process. In addition, as recently
amended, the bill provides that if a communications service
provider relies in good faith on a court order or statement of
intent, then this will give the provider a complete defense
against any actions brought against the provider as a result of
interrupting the service. Finally, recent amendments also take
account of the fact that the Obama administration, in
cooperation with the wireless communications industry, has
created a federal "Emergency Wireless Protocol" for terrorist or
related events that might require a national response. The bill
specifies that for actions that fall within the ambit of this
federal policy, notices would be served upon the California
Emergency Management Agency (CEMA) in accordance with those
protocols.
In sum, the bill seeks to craft a reasonable balance that
protects public safety and free speech rights, while at the same
time recognizing that there may be situations in which
interrupting services, at least for a limited period and in a
narrowly tailored manner, will be necessary. At first glance,
the bill may appear to establish a very high threshold to
justify interruption of services. However, as the author and
supporters have informed the Committee, the situations in which
public safety would be better served by interrupting
communications services, than allowing to remain open, would be
rare. Indeed, as was apparent during the 9-11 terrorist attack
on the World Trade Center, cell phones provided a critical means
for persons trapped inside of the buildings to communicate with
people outside. Any benefit gained by denying cell phone or
wireless service to terrorists would be counterbalanced by
denying the same to their victims or citizens who might offer
them assistance. Nonetheless, this bill would permit such
orders where the gravity and the nature of the situation demand
it.
Alternatives to Prior Restraint on Speech : BART's action in
cutting off wireless service in order to preemptively thwart
protests on a matter of public concern amounted to prior
restraint on speech. The courts have repeatedly held that prior
restraints are the most egregious forms of restraint and are
always the most constitutionally suspect. �See e.g. Near v.
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Minnesota (1931) 283 U.S. 697, suggesting the prior restraints
are only justified in extreme situations, such as times of war
to repress information about the movement of troops; See also
New York Times v. U.S. (1971) 403 U.S. 713 (aka "The Pentagon
Papers Case.")] Largely because of this strong presumption
against the constitutionality of prior restraints, the courts
have held that the proper response to protest - even protest
that might potentially result in social disruption or even
violence - is not to prohibit the speech beforehand, but to hire
additional police officers and arrest persons who engage in
unlawful conduct. �See e.g. Collins v. Jordan (9th Cir. 1997)
110 F.3d 1363; and Ovadal v. City of Madison (7th Cir. 2005) 416
F.3d 531 ("�T]he police must permit the speech and control the
crowd.")]
ARGUMENTS IN SUPPORT : The ACLU "strongly supports" this bill
because it will establish a "statewide standard to protect
communications services from service provider or government
interruption, unless a magistrate makes certain findings."
ACLU cites ample case law in support of the proposition that
prior restraints on speech always "bear a 'heavy presumption' of
unconstitutionality." Even concern about public safety, the
ACLU writes, "does not give a governmental entity the power to
act as censor and implement a total ban on speech, even if only
temporary." The ACLU argues that the courts have made it clear
that, even when protests might potentially lead to potential or
actual violence, the proper response is not to ban speech as a
preemptive measure but "to ensure an adequate police response"
and arrest persons who actually engage in unlawful conduct.
Speech only loses protection, the ACLU notes, under the rare
circumstances where it is likely to incite, and intended to
produce, imminent lawless action. ACLU believes that this bill
"takes a measured approach to protecting First Amendment speech
while permitting the interruption of communications services
based on Constitutional standards."
AFSCME points to the BART actions as a primary justification for
this bill, saying that BART's actions draw "comparisons to the
oppressive governments of the world that shut down
communications systems to silence public protests." AFSCME
argues that this bill would "prevent this type of injustice from
occurring again" by requiring "a court order based on probable
cause." AFCSME concludes that this bill "would protect public
safety by ensuring 911 access to emergency services and . . .
preserve a free and open communication system, which is
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imperative to democracy."
The Utilities Reform Network (TURN) argues that this bill goes
beyond the BART incident, pointing out that "the ability to
disrupt telecommunications services for thousands of customers
simultaneously is a very powerful tool that must be used
judiciously and closely monitored." While TURN recognizes that
there "may be times when threats to public safety justify
extreme actions such as blocking wireline or wireless
communications," the justifying circumstances must be narrow and
subject to judicial scrutiny.
AT&T, which initially had concerns about the bill, has moved to
a position of support with the amendments that will be taken
today. As AT&T has expressed to the Committee, its primary
concern is that communications service providers have clear
guidelines about what they can and cannot do, and assurances
that they will not be held liable for interrupting services if
they act in good faith reliance on a court order or statement of
the government entity's intent to obtain such an order. The
bill as proposed to be amended apparently meets those concerns.
AT&T applauds the author for helping to "create a more detailed
and workable process that feeds into existing processes that
communications serve providers have developed for responding to
various types of requests from law enforcement or governmental
entities."
REGISTERED SUPPORT / OPPOSITION :
Support
ACLU
AFSCME
AT&T
California Cable and Telecommunications Association (If amended
- prior version)
California Chapter of the National Emergency Number Association
TURN
Opposition
None on file
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Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334