BILL ANALYSIS �
SB 1160
Page 1
SENATE THIRD READING
SB 1160 (Padilla)
As Amended July 5, 2012
Majority vote
SENATE VOTE :32-0
UTILITIES & COMMERCE 13-0 JUDICIARY
10-0
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|Ayes:|Bradford, Fletcher, |Ayes:|Feuer, Wagner, Atkins, |
| |Buchanan, Fong, Fuentes, | |Dickinson, Gorell, Huber, |
| |Roger Hern�ndez, Huffman, | |Jones, Monning, |
| |Knight, Ma, Nestande, | |Wieckowski, Bonnie |
| |Skinner, Swanson, Valadao | |Lowenthal |
| | | | |
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SUMMARY : Prohibits a governmental entity, and a provider of
communication service acting at the request of a governmental
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.
FISCAL EFFECT : None
COMMENTS : According to the author, 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.
Background : For many decades landline telephone service was the
only means of
communication and calling 911 for emergency assistance. The
evolution of technology has brought to the forefront a greater
use of mobile wireless and Voice over Internet Protocol (VoIP)
services as a primary means of communication for voice calls,
texting, e-mail, Internet access, and other uses, including
access to 911. It has been estimated by the Federal
Communication Commission (FCC) that 70% of all 911 calls now
originate from wireless phones.
In California, Public Utilities Commission (PUC) Decision No.
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71797 (1966), established a procedure that must be followed
before "any communications utility operating under the
jurisdiction of the commission" may refuse service to an
applicant, or discontinue service to a subscriber, based on an
assertion by law enforcement that the service is or will be used
for unlawful purposes. This is commonly known as "Tariff Rule
31." Importantly, this tariff rule applies only to refusals of
service/disconnections requested by law enforcement; it does not
apply to company-initiated disconnections for fraud or other
illegal activity made pursuant to applicable tariffs, customer
contracts, and internal practices to prevent network harm.
PUC implemented "Tariff Rule 31" following the California
Supreme Court's 1966 decision in Sokol v. Public Utilities
Commission (1966) 65 Cal.2d 247, which struck down a prior PUC
rule on this matter. The Sokol case held that "�Whatever] new
procedure is hereafter devised," it "must at a minimum require
that the police obtain prior authorization to secure the
termination of service by satisfying an impartial tribunal that
they have probable cause to act, in a manner reasonably
comparable to a proceeding before a magistrate to obtain a
search warrant. In addition, after service is terminated the
subscriber must be promptly afforded the opportunity to
challenge the allegations of the police and to secure
restoration of the service." Sokol, 65 Cal.2d at page 256.
Following Sokol, PUC undertook further proceedings to modify the
rule consistent with this standard. PUC was then sued again by
an aggrieved person asserting "extensive" constitutional errors
including violation of free speech, due process, and unlawful
taking of property. In Goldin v. Public Utilities Commission
(1979), 23 Cal. 3d 638, the California Supreme Court held that
"Tariff Rule 31" needed to "be modified in certain respects in
order to insure the full future protection of constitutional
rights to due process of law." Specifically, Goldin required
PUC to modify the rule to provide that the magistrate must find
that there is probable cause to believe "not only that the
subject telephone facilities have been or are to be used in the
commission or facilitation of illegal acts, but that the
character of such acts is such that, absent immediate and
summary action in the premises, significant dangers to public
health, safety, or welfare will result." Goldin, 23 Cal. 3d at
664-65. Otherwise, Goldin found "Tariff Rule 31" to be
generally consistent with the requirements of the Sokol decision
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and the requirements of applicable principles of state and
federal constitutional law. Goldin, 23 Cal. 3d at 670. PUC
amended "Tariff Rule 31" to implement the modifications required
under Goldin. See Decision 91188, adopted January 8, 1980.
BART goes too far ?: In August 2011, officials of the Bay Area
Rapid Transit district
temporarily disabled wireless service in several stations to
interfere with anticipated political demonstrations protesting
the fatal shooting of a passenger by BART police. Thousands of
BART commuters lost the ability to utilize wireless services in
the affected stations for the purpose of public safety.
In December 2011, the BART board of directors adopted the
nation's first policy specifying when mobile wireless service
can be shut down. The new policy allows BART to interrupt cell
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.
What this bill does ?: This bill would preempt a governmental
entity, provider of
communications service, or any official 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 for an illegal purpose unless a signed
court order is obtained.
Nothing in 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 follow certain criteria.
It also makes current law technology-neutral to apply to any
communications service that interconnects with the public
switched telecommunications network and is required by FCC to
provide users 911 access to emergency services.
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Analysis Prepared by : DaVina Flemings / U. & C. / (916)
319-2083 FN:
0004457