BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 962|
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UNFINISHED BUSINESS
Bill No: SB 962
Author: Leno (D), et al.
Amended: 8/4/14
Vote: 21
SENATE ENERGY, UTIL. & COMMUNIC. COMM. : 6-2, 4/1/14
AYES: Padilla, Corbett, DeSaulnier, Hill, Pavley, Wolk
NOES: Fuller, Knight
NO VOTE RECORDED: Block, Cannella, De Le�n
SENATE FLOOR : 26-8, 5/8/14
AYES: Beall, Block, Cannella, Corbett, Correa, De Le�n,
DeSaulnier, Evans, Gaines, Galgiani, Hancock, Hernandez, Hill,
Hueso, Jackson, Lara, Leno, Lieu, Liu, Mitchell, Monning,
Padilla, Pavley, Roth, Steinberg, Wolk
NOES: Anderson, Berryhill, Fuller, Huff, Morrell, Vidak,
Walters, Wyland
NO VOTE RECORDED: Calderon, Knight, Nielsen, Torres, Wright,
Yee
ASSEMBLY FLOOR : 53-20, 8/7/14 - See last page for vote
SUBJECT : Advanced mobile communications devices
SOURCE : San Francisco, District Attorney George Gasc�n
DIGEST : This bill requires smartphones manufactured after
July 1, 2015, and sold in California to contain a technological
solution at the time of sale that will render the essential
features of the smartphone inoperable when not in the possession
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of the authorized user, and also provides a civil penalty for
violations and limits retail liability if the solution is
circumvented.
Assembly Amendments refine the definitions of "smartphone,"
"essential features," and "hard reset;" clarify that any
smartphone model that was first introduced prior to January 1,
2015, that cannot reasonably be reengineered to support the
manufacturer's or operating system provider's technological
solution, is not subject to the requirements of this bill; add
specific protections for retailers, manufacturers and operating
system providers; and state that no local government shall adopt
their own ordinances related to technological solutions for
smartphones.
ANALYSIS :
Existing law:
1.Provides that theft - the stealing, taking, or driving away
with the personal property of another - is a misdemeanor when
the value of the property does not exceed $950 and is
punishable by fines and up to one year in the county jail.
2.Requires all providers of wireless and Internet-based
communications services to enable customers to call 911 for
emergency services, and establishes dates for enabling text to
911 and Next Generation 911.
This bill:
1.Requires any smartphone manufactured on or after July 1, 2015,
and sold in California after that date to include a
technological solution at the time of sale, to be provided by
the manufacturer or operating system provider, that once
initiated and successfully communicated to the smartphone, can
render the essential features, as defined, of the smartphone
inoperable to an unauthorized user when the smartphone is not
in the possession of an authorized user.
2.Requires the smartphone, during the initial device setup
process, to prompt an authorized user to enable the
technological solution.
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3.Requires the technological solution to be reversible, so that
if an authorized user obtains possession of the smartphone
after the essential features of the smartphone have been
rendered inoperable, the operation of those essential features
can be restored by an authorized user.
4.Provides that the technological solution may consist of
software, hardware, or a combination of both software and
hardware.
5.Requires that the technological solution be able to withstand
a hard reset or operating system downgrade.
6.Requires that the technological solution prevent reactivation
of the smartphone on a wireless network except by an
authorized user.
7.Requires that an authorized user of a smartphone be able to
affirmatively elect to disable or opt-out of enabling the
technological solution at any time.
8.Requires that the physical acts necessary to disable or
opt-out of enabling the technological solution may only be
performed by the authorized user or a person specifically
selected by the authorized user to disable or opt-out of
enabling the technological solution.
9.Exempts from the anti-theft technological solution
requirements of these provisions any smartphone model that was
first introduced prior to January 1, 2015, which cannot
reasonably be reengineered to support the manufacturer's or
operating system provider's technological solution, including
if the hardware or software cannot support a retroactive
update.
10.Provides that the knowing retail sale of a smartphone in
California in violation of these requirements may be subject
to a civil penalty of not less than $500, not more than
$2,500, per smartphone sold in California in violation of
these provisions.
11.Requires any suit to impose a civil penalty to be brought by
the Attorney General, a district attorney, or a city attorney.
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12.Provides that a failure of the technological solution due to
hacking or other third-party circumvention may be considered a
violation for purposes of the civil penalty if, at the time of
sale, the seller had received notification from the
manufacturer or operating system provider that the
vulnerability cannot be remedied by a software patch or other
solution.
13.Specifies that there is no private right of action to enforce
these provisions.
14.Provides that the retail sale in California of a smartphone
shall not result in any private civil liability to the seller
from that retail sale alone if the liability results from or
is caused by failure of a technological solution, including
any hacking or other third-party circumvention, unless at the
time of sale the seller had received notification from the
manufacturer or operating system provider that the
vulnerability cannot be remedied by a software patch or other
solution.
15.Provides that nothing in these provisions preclude a suit for
civil damages on any other basis outside of the retail sale
transaction, including, but not limited to, a claim of false
advertising.
16.States that nothing in these provisions prohibit a network
operator, device manufacturer, or operating system provider
from offering a technological solution or other service in
addition to the technological solution required to be provided
by the device manufacturer or operating system provider.
17.States that nothing in these provisions require a
technological solution that is incompatible with, or renders
it impossible to comply with, obligations under state and
federal law and regulation related to any of the following:
A. The provision of emergency services through the 911
system, including text to 911, bounce-back messages, and
location accuracy requirements;
B. Participation in the wireless emergency alert system;
and
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C. Participation in state and local emergency alert and
public safety warning systems.
1.Defines the term "smartphone" to mean a cellular radio
telephone or other mobile voice communications handset device
(but not a radio cellular telephone commonly referred to as a
"feature" or "messaging" telephone, laptop, a tablet device,
or a device that only has electronic reading capability), that
includes all of the following features:
A. Utilizes a mobile operating system;
B. Possesses the capability to utilize mobile software
applications, access and browse the Internet, utilize text
messaging, utilize digital voice service, and send and
receive email;
C. Has wireless network connectivity; and
D. Is capable of operating on a long-term evolution network
or successor wireless data network communication standards.
1.Defines the "essential features" of a smartphone to be the
ability to use the smartphone for voice communications, text
messaging, and the ability to browse the Internet, including
the ability to access and use mobile software applications.
Essential features do not include any functionality needed for
the operation of the technological solution, nor does it
include the ability of the smartphone to access emergency
services by a voice call or text to the numerals '911,' the
ability of a smartphone to receive wireless emergency alerts
and warnings, or the ability to call an emergency number
pre-designated by the owner.
2.Defines the term "hard reset" to mean the restoration of a
smartphone to the state it was in when it left the factory
through processes commonly termed a factory reset or master
reset.
3.Defines the term "Sold in California," or any variation
thereof, to mean that the smartphone is sold at retail from a
location within the state, or the smartphone is sold and
shipped to an end-use consumer at an address within the state.
Sold in California does not include a smartphone that is
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resold in the state on the secondhand market or that is
consigned and held as collateral on a loan.
4.Makes findings and declarations such the enactment of a
uniform policy to deter the theft of smartphones and to
protect the privacy of owners of stolen smartphones is a
matter of statewide concern and that no city, county, or city
and county shall impose requirements on manufacturers,
operating system providers, wireless carriers, or retailers
relating to technological solutions for smartphones.
5.Makes findings and declarations related to the prevalence and
ramifications of smartphone theft in the United States.
Background
As smartphones continue to transform all aspects of modern life,
they also have caused a crime epidemic. More than 90% of all
Americans own a mobile device, and nearly 60% a smartphone. The
high resale value of smartphones and other hand-held mobile
devices like tablets, and their relatively small size, make them
prime targets for thieves. Many published reports document a
dramatic increase of smartphone theft. According to reports
summarized by the San Francisco District Attorney's Office:
Most robberies now involve the theft of a smartphone;
In 2012, more than 50% of all robberies in San Francisco and
75% in Oakland involved the theft of a mobile device; and
An estimated 1.6 million Americans were victimized for their
smartphones in 2012.
The Federal Communications Commission, law enforcement, and
industry collaborated on efforts to address the problem in 2012.
These included providing consumers more security options on
devices and automatic prompts to establish passwords and
launching a public education campaign urging consumers to use
security apps that enable them to remotely locate, lock and wipe
devices. A national database was established to help prevent
lost or stolen phones from being reactivated. Wireless carriers
use the database to check whether a device presented to them has
been reported lost or stolen and, if so, it will not allow
service to be established. Its effectiveness depends on
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consumers reporting a lost or stolen phone. Industry reports
that efforts are underway to link more foreign carriers and
countries to the database. Without that international
cooperation, stolen phones resold in foreign countries continue
to have value.
Industry continues to introduce new and more sophisticated
security solutions for consumers. These include options such as
Apple's "Find My iPhone" with "Activation Lock" feature that
allows a person who has lost or stolen an iPhone to remotely log
into a hosted platform and send a signal to lock the device and
make it unusable without the original owner's security passcode
established when the device was purchased. Other solutions
include Samsung's "Reactivation Lock" and Android's "Lo Jack."
Some solutions are built into the device or downloaded as an
app, some with a fee.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 8/7/14)
San Francisco, District Attorney George Gasc�n (source)
Alameda County District Attorney's Office
Associated Students of the University of California
Association of Chief Police Officers of the United Kingdom
Association of Orange County Deputy Sheriffs Association
Berkeley City Council
California College & University Police Chiefs Association
California District Attorneys Association
California Fraternal Order of Police
California Pawnbrokers Association
California Police Chiefs Association
California State Sheriffs' Association
California Transit Association
Cities of Emeryville, Los Angeles, Oakland, San Diego, San
Francisco, Santa Ana and Thousand Oaks
City and County of San Francisco
City of Los Angeles, Mayor Eric Garcetti
City of Los Angeles, Police Chief Charlie Beck
City of Oakland, City Council Pro Tem Rebecca D. Kaplan
Consumer Action
Consumer Federation of California
Consumers Union
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Crime Victims United of California
Hayward Police Department
Long Beach Police Officers Association
Los Angeles County Deputy Sheriffs Association
Los Angeles County District Attorney's Office
Los Angeles Police Protective League
Los Angeles Professional Peace Officers Association
Los Angeles, City Attorney Michael N. Feuer
Mayors and Councilmembers Association of Sonoma County
Metropolitan Police Service of London, U.K.
Neighborhood Crime Prevention Councils of Oakland
Oakland Chamber of Commerce
Oakland City Council
Oakland Police Department, Chief of Police Sean C. Whent
Oakland, Mayor Jean Quan
Riverside Sheriffs Association
Sacramento County Deputy Sheriffs Association
San Diego, District Attorney Bonnie Dumanis
San Francisco Bay Area Transit District
San Francisco Bay Area Transit District Police Department
San Francisco Municipal Transportation Agency
San Mateo County Police Chiefs Association
San Mateo County Sheriffs Association
San Mateo, District Attorney Steve Wagstaffe
Santa Ana Police Officers Association
Santa Clara, District Attorney Jeff Rosen
Secure Our Smartphones (S.O.S.) Initiative
Temescal Merchants Association
The Utility Reform Network
OPPOSITION : (Verified 8/7/14)
CalChamber
CTIA, the Wireless Association
Electronic Frontier Foundation
League of California Cities
Los Angeles Area Chamber of Commerce
San Jose Silicon Valley Chamber of Commerce
Silicon Valley Leadership Group
TechAmerica
TechNet
ARGUMENTS IN SUPPORT : According to the author "California is
experiencing an epidemic of smartphone thefts, many of which
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turn violent.? There are existing, very serious penalties for
theft and robbery in California. However, the epidemic nature
of this particular crime is so widespread that enforcement
agencies are overwhelmed. That is why removing the value of a
stolen device on the black market is the most effective way to
deter would be criminals, and this bill will do just that by
requiring that smartphones sold in California come pre-equipped
with theft deterrent technology.?"
ARGUMENTS IN OPPOSITION : The San Jose Silicon Valley Chamber
of Commerce "believes, as one of its guiding principles, that
private sector solutions should be sought whenever possible to
address public concerns. While we applaud the goal to decrease
theft and increase privacy, we feel that SB 962, though
well-intentioned, would not achieve that ultimate outcome. Most
operating systems developed in Silicon Valley already possess
the capability to remotely lock, erase, or disable their mobile
devices (including Apple's IOS and Microsoft's Windows Phone).
Also, as of late last year, all four major national wireless
carriers had begun participation in the international database
of lost or stolen4GLTE phones."
ASSEMBLY FLOOR : 53-20, 8/7/14
AYES: Achadjian, Alejo, Ammiano, Bloom, Bocanegra, Bonilla,
Bonta, Bradford, Brown, Buchanan, Ian Calderon, Campos, Chau,
Chesbro, Conway, Cooley, Dickinson, Eggman, Fong, Gatto,
Gomez, Gonzalez, Gordon, Gorell, Gray, Roger Hern�ndez,
Holden, Jones-Sawyer, Levine, Lowenthal, Maienschein, Medina,
Mullin, Muratsuchi, Nazarian, Nestande, Pan, John A. P�rez, V.
Manuel P�rez, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas,
Skinner, Stone, Ting, Weber, Wieckowski, Wilk, Williams,
Yamada, Atkins
NOES: Allen, Ch�vez, Dababneh, Dahle, Daly, Donnelly, Frazier,
Beth Gaines, Grove, Hagman, Harkey, Jones, Logue, Melendez,
Olsen, Patterson, Perea, Quirk-Silva, Wagner, Waldron
NO VOTE RECORDED: Bigelow, Fox, Garcia, Hall, Linder, Mansoor,
Vacancy
JG:e 8/8/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
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