Bill Text: CA SB1160 | 2011-2012 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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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-Amended.html

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BILL NUMBER: SB 1160	AMENDED
	BILL TEXT

	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, as amended, 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  repeal   recast  this
provision. 
   This 
    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,  or  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 
interruption to communications service as directed by that order or
statement.   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.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


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)  No   Unless authorized pursuant to
subdivision (d) or (f), no  governmental entity and no provider
of communications service  , or any agent of a governmental
entity  , 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
 will not suppress   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) This section does not curtail a governmental entity from
reliance on judicially recognized exceptions to the prohibition on
prior restraints on 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 as required by this section, the
governmental entity shall do all of the following:  
   (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:  
   (1) 
    (A)  Apply for a court order without delay, and in no
event, later than  one hour   six hours 
after  commencement of  an interruption of communications
service. 
   (2) 
    (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. 
   (3) 
    (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.  
   (f) 
    (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. 

   (g) 
    (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.