BILL ANALYSIS �
------------------------------------------------------------
|SENATE RULES COMMITTEE | SB 1160|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
UNFINISHED BUSINESS
Bill No: SB 1160
Author: Padilla (D)
Amended: 7/5/12
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
ASSEMBLY FLOOR : 76-0, 8/9/12 - See last page for vote
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.
Assembly Amendments of 7/5/12 make clarifying changes.
ANALYSIS :
CONTINUED
SB 1160
Page
2
Existing law:
1. 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.
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
CONTINUED
SB 1160
Page
3
or state law.
2. Requires the order to clearly describe the specific
communication service to be interrupted with sufficient
detail as to customer, cell sector, central office, or
geographical area affected, be narrowly tailored to the
specific circumstances under which the order is made,
and requires that the order not interfere with more
communication than is necessary to achieve the purposes
of the order.
3. Allows the order to authorize an interruption of service
only for as long as is reasonably necessary, requires
that the interruption cease once the danger that
justified the interruption is abated, and requires the
order to specify a process to immediately serve notice
on the communication service provider to cease the
interruption.
4. Provides that a good faith reliance upon an order of a
judicial officer, or a signed statement of intent to
apply for a court order, as prescribed, constitutes a
complete defense for any communications services
provider served against any action brought as a result
of the interruption to communications service as
directed by that order or statement.
5. Finds and declares that ensuring that California users
of any communications service not have this service
interrupted and thereby be deprived of a means to
connect with the state's 911 emergency services or be
deprived of a means to engage in constitutionally
protected expression, is a matter of statewide concern,
and not a municipal affair.
6. 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.
7. Makes legislative findings that protecting customers'
911 access to emergency services and their means to
engage in constitutionally protected expression is a
CONTINUED
SB 1160
Page
4
matter of statewide concern, thereby preempting local
laws or policies that conflict with this bill and not a
municipal affair.
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
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
CONTINUED
SB 1160
Page
5
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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 8/13/12)
American Civil Liberties Union Northern California
AT&T
BART
California Cable & Telecommunications Association, if
amended
California Chapter of the National Emergency Number
CONTINUED
SB 1160
Page
6
Association
The Utility Reform Network
OPPOSITION : (Verified 8/13/12)
Los Angeles District Attorney's Office
Los Angeles Sheriff's Department
ARGUMENTS IN SUPPORT : 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.
ARGUMENTS IN OPPOSITION : The Los Angeles District
Attorney's Office is strongly opposed to Senate Bill 1160.
Although well intentioned, we believe SB 1160 will result
in a threat to public safety in crimes involving
terrorists, hostages, barricade situations and other
emergencies. This could cause loss of life or serious
physical injury to innocent persons.
Current law permits termination or disruption of telephone
service where there is probable cause to believe a person
is holding hostages and is committing a crime or is
barricaded and is resisting apprehension through use of
threatened use of force. Under current law, a
telecommunications operator may also refuse to send a
message that counsels or aids and abets treason or
resistance to lawful authority, that is calculated to
further any fraudulent plan or purpose, that instigates or
encourages the perpetrator of an unlawful act or that
facilitates the escape of any criminal or persons accused
of a crime.
SB 1160 would repeal the above language and replace it with
a procedure requiring a court order be issued in advance of
the service interruption. This procedure could interfere
with law enforcement's ability to limit communication in a
terrorist or hostage situation. While Assembly amendments
provide for an emergency procedure, the requirement that
law enforcement obtain an order within one hour of the
interruption of communication is unwieldy and would
unnecessarily tie-up law enforcement resources at a
critical time in the emergency.
CONTINUED
SB 1160
Page
7
SB 1160 imposes standards for obtaining an emergency order
that would make it difficult, if not impossible, to obtain
an order in many emergencies. SB 1160 would prevent an
order from being issued where there is an incidental effect
on protected speech. This is unworkable. For example, if
a there is a bomb on a train set to explode upon a signal
from a mobile phone, it might be necessary to temporarily
block all mobile phone service on the train. However,
because this would have the effect of suppressing the
protected speech of other mobile phone users, the service
interruption would be unlawful under SB1160.
ASSEMBLY FLOOR : 76-0, 8/9/12
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall, Bill
Berryhill, Block, Blumenfield, Bonilla, Brownley,
Buchanan, Butler, Campos, Carter, Cedillo, Chesbro,
Conway, Cook, Davis, Dickinson, Eng, Feuer, Fletcher,
Fong, Fuentes, Furutani, Beth Gaines, Galgiani, Garrick,
Gatto, Gordon, Gorell, Grove, Hagman, Halderman, Hall,
Harkey, Hayashi, Hill, Huber, Hueso, Huffman, Jeffries,
Jones, Knight, Lara, Logue, Bonnie Lowenthal, Ma,
Mansoor, Mendoza, Miller, Mitchell, Monning, Morrell,
Nestande, Nielsen, Norby, Olsen, Pan, Perea, V. Manuel
P�rez, Portantino, Silva, Skinner, Smyth, Solorio,
Swanson, Torres, Valadao, Wagner, Wieckowski, Williams,
Yamada, John A. P�rez
NO VOTE RECORDED: Bradford, Charles Calderon, Donnelly,
Roger Hern�ndez
RM:d 8/13/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
CONTINUED