Bill Text: CA SB1160 | 2011-2012 | Regular Session | Enrolled
Bill Title: Communications: service interruptions.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Vetoed) 2012-09-29 - In Senate. Consideration of Governor's veto pending. [SB1160 Detail]
Download: California-2011-SB1160-Enrolled.html
BILL NUMBER: SB 1160 ENROLLED
BILL TEXT
PASSED THE SENATE AUGUST 29, 2012
PASSED THE ASSEMBLY AUGUST 28, 2012
AMENDED IN ASSEMBLY AUGUST 24, 2012
AMENDED IN ASSEMBLY JULY 5, 2012
AMENDED IN ASSEMBLY JUNE 19, 2012
AMENDED IN SENATE MAY 15, 2012
AMENDED IN SENATE APRIL 9, 2012
INTRODUCED BY Senator Padilla
FEBRUARY 22, 2012
An act to amend Section 7904 of, and to repeal and add Section
7907 of, the Public Utilities Code, relating to communications.
LEGISLATIVE COUNSEL'S DIGEST
SB 1160, Padilla. Communications: service interruptions.
Existing law 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.
Existing law provides that these requirements are not applicable when
charges for transmittal or delivery of the message have not been
paid or tendered, for messages counseling, aiding, abetting, or
encouraging treason or resistance to lawful authority, to a message
calculated to further any fraudulent plan or purpose, to a message
instigating or encouraging the perpetration of any unlawful act, or
to a message facilitating the escape of any criminal or person
accused of crime.
This bill would retain the provision that the above-described
requirements are not applicable when payment for charges for
transmittal or delivery of the message has not been paid or tendered,
but would delete the other enumerated exceptions.
Existing law provides that where a 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, the official may order a
previously designated telephone corporation security employee to
arrange to cut, reroute, or divert telephone lines, as specified.
This bill would recast this provision.
With certain exceptions, this bill would prohibit a governmental
entity, as defined, and a provider of communications service, as
defined, acting at the request of a governmental entity, from
undertaking to interrupt communications service, as defined, 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, as defined, that makes specified
findings. The bill would require the order to clearly describe the
specific 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 would require that the order not interfere with
more communication than is necessary to achieve the purposes of the
order. The bill would allow the order to authorize an interruption of
service only for as long as is reasonably necessary, require that
the interruption cease once the danger that justified the
interruption is abated, and require the order to specify a process to
immediately serve notice on the communication service provider to
cease the interruption. The bill would provide that a good faith
reliance upon an order of a judicial officer, a signed statement of
intent to apply for a court order, as prescribed, or a request to
cut, reroute, or divert lines made by a designated police officer who
is authorized to use an electronic amplifying or recording device in
an emergency situation that involves the taking of a hostage or the
barricading of a location pursuant to a specified provision of the
Penal Code, constitutes a complete defense for any communications
services provider against any action brought as a result of the
cutting, rerouting, or diversion of lines as requested by that
officer.
The bill would also find and declare 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, as provided.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 7904 of the Public Utilities Code is amended to
read:
7904. Every agent, operator, or employee of any telegraph or
telephone office, who willfully refuses or neglects to send any
message received at the office for transmission, or willfully
postpones the transmission of the message out of its order, or
willfully refuses or neglects to deliver any message received by
telegraph or telephone, is guilty of a misdemeanor. Nothing in this
section shall be construed to require any message to be received,
transmitted, or delivered, unless the charges thereon have been paid
or tendered.
SEC. 2. Section 7907 of the Public Utilities Code is repealed.
SEC. 3. Section 7907 is added to the Public Utilities Code, to
read:
7907. (a) For purposes of this section, the following terms have
the following meanings:
(1) "Communications service" means any communications service that
interconnects with the public switched telephone network and is
required by the Federal Communications Commission to provide
customers with 911 access to emergency services.
(2) "Governmental entity" means every local government, including
a city, county, city and county, a transit, joint powers, special, or
other district, the state, and every agency, department, commission,
board, bureau, or other political subdivision of the state, or any
authorized agent thereof.
(3) "Interrupt communications service" means to knowingly or
intentionally suspend, disconnect, interrupt, or disrupt
communications service to one or more particular customers or all
customers in a geographical area. "Interrupt communications service"
does not include any interruption of service pursuant to a customer
service agreement, a contract, a tariff, a provider's internal
practices to protect the security of its networks, Section 2876,
5322, or 5371.6 of this code, Section 149 or 7099.10 of the Business
and Professions Code, or subdivision (d) of Section 4576 of the Penal
Code.
(4) "Judicial officer" means a magistrate, judge, justice,
commissioner, referee, or any person appointed by a court to serve in
one of these capacities, of any state or federal court located in
this state.
(b) (1) Unless authorized pursuant to subdivision (d) or (f), no
governmental entity and no provider of communications service, acting
at the request of a governmental entity, shall interrupt
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) That probable cause exists 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
communications service, serious, direct, immediate, and irreparable
danger to public safety will result.
(C) That the interruption of communications service is narrowly
tailored to prevent unlawful infringement of speech that is protected
by the First Amendment to the United States Constitution or Section
2 of Article I of the California Constitution, or violate any other
rights under federal or state law.
(2) The order shall clearly describe the specific communications
service to be interrupted with sufficient detail as to customer, cell
sector, central office, or geographical area affected, shall be
narrowly tailored to the specific circumstances under which the order
is made, and shall not interfere with more communication than is
necessary to achieve the purposes of the order.
(3) The order shall authorize an interruption of service only for
as long as is reasonably necessary and shall require that the
interruption cease once the danger that justified the interruption is
abated and shall specify a process to immediately serve notice on
the communications service provider to cease the interruption.
(c) An order to interrupt communications service, or a signed
statement of intent provided pursuant to subdivision (d), that falls
within the federal Emergency Wireless Protocol shall be served on the
California Emergency Management Agency. All other orders to
interrupt communications service or statements of intent shall be
served on the communications service provider's contact for receiving
requests from law enforcement, including receipt of and responding
to state or federal warrants, orders, or subpoenas.
(d) (1) Communications service shall not be interrupted without a
court order pursuant to subdivision (b) except in the most extreme
emergency circumstances that require immediate interruption of
communications service and there is insufficient time to obtain a
court order. This standard is based on the following findings:
(A) Interruption of communications service threatens public safety
by depriving persons of the ability to call 911 and communicate with
family, friends, employers, schools, and others in an emergency;
deprives persons of the ability to receive emergency alerts; and
impairs the ability of first responders to communicate with each
other.
(B) Interruption of communications service constitutes a prior
restraint on speech, which the United States Supreme Court has held
bears a heavy presumption of unconstitutionality and is justified
under the First Amendment to the United States Constitution only in
exceptional circumstances involving, for example, national security,
nuclear disaster, or detonation of a bomb.
(2) If a governmental entity reasonably determines, upon
consideration of these findings, that emergency circumstances are so
extreme and exceptional that an interruption would meet the
requirements for an order under subdivision (b) and outweigh any
public safety threat from the interruption then the governmental
entity may interrupt communications service without first obtaining a
court order as required by this section, provided the entity does
all of the following:
(A) Apply for a court order without delay, and in no event, later
than six hours after commencement of an interruption of
communications service.
(B) Provide the provider of communications service involved in the
service interruption 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 extreme emergency
circumstances, and the specific communications 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 communications service interruption on its
Internet Web site without delay, unless the circumstances that
justify an interruption of communications services without first
obtaining a court order justify not providing the notice.
(e) A provider of communications service that intentionally
interrupts communications service pursuant to subdivision (b) shall
comply with any rule or notification requirement of the commission or
Federal Communications Commission, or both, and any other applicable
provision or requirement of state or federal law.
(f) A designated peace officer who is authorized to use an
electronic amplifying or recording device in an emergency situation
that involves the taking of a hostage or the barricading of a
location pursuant to Section 633.8 of the Penal Code may order a
communications service provider to cut, reroute, or divert lines for
the purpose of preventing communication by suspects involved in that
emergency situation. If a designated police officer exercises
authority pursuant to this subdivision, the procedural requirements
for obtaining after-the-fact authority from a court pursuant to
Section 633.8 of the Penal Code shall apply.
(g) (1) Good faith reliance by a communications service provider
upon an order of a judicial officer authorizing the interruption of
communications services pursuant to subdivision (b), or upon a signed
statement of intent to apply for a court order that the government
asserts meets the requirements of subdivision (d), 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.
(2) Notwithstanding Section 591, 631, or 632 of the Penal Code,
good faith reliance by a communications service provider, upon a
request by a designated peace officer, pursuant to subdivision (f),
to cut, reroute, or divert lines for the purpose of preventing
communication by suspects involved in an emergency situation that
involves the taking of a hostage or the barricading of a location,
shall constitute a complete defense for any communications service
provider against any action brought as a result of the cutting,
rerouting, or diversion of lines as requested by that officer.
(h) The Legislature finds and declares that ensuring that
California users of any communications service not have that service
interrupted, and thereby be deprived of 911 access to emergency
services or a means to engage in constitutionally protected
expression, 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.
