AB 1034: Government interruption of communications.
- Session Year: 2017-2018
- House: Assembly
- Latest Version Date: 2017-09-27
Existing law authorizes a supervising law enforcement official with 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, to order a telephone corporation security employee to arrange to cut, reroute, or divert telephone lines for the purpose of preventing telephone communication by the suspected person with any person other than a peace officer or person authorized by a peace officer. Existing law, until January 1, 2020, prohibits a governmental entity and a provider of communications service 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 service for an illegal purpose, except pursuant to an order signed by a judicial officer, as specified. Existing law allows the order to authorize an interruption of communications 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 communications service provider to cease the interruption. Existing law authorizes interruption of a communications service without first obtaining a court order under extreme emergency situations, as specified.
This bill would repeal all of those provisions. This bill would instead prohibit any government entity, or service provider acting at the request of a government entity, from interrupting a communication service either to prevent the communications service from being used for an illegal purpose or to protect public health, safety, or welfare. The bill would authorize a government entity to interrupt a communications service for either of those purposes in an extreme emergency situation, as specified, or if the interruption is authorized by a court order. The bill would require the application for a court order under its provisions to require specified information, and would authorize the court to grant the order if specified conditions are met, including, among other things, there is probable cause that the communication is being or will be used for an unlawful purpose and that absent immediate and summary action to interrupt the communication service, serious, direct, and immediate danger to public health, safety, or welfare will result. The bill would require the order to contain specified information, including a statement of the duration of the authorized interruption.
The bill would require a government entity interrupting a communications service due to an extreme emergency situation to apply for a court order without delay, and if possible, to file the application within 6 hours after commencement of interruption. The bill would require the government entity, if it does not apply for an application within 6 hours, to apply within 24 hours after commencement of the interruption and include a declaration under penalty of perjury stating the reason for the delay. By expanding the crime of perjury, this bill would create a state-mandated local program.
The bill would provide that good faith reliance by a service provider on a court order issued pursuant to these provisions is a defense for the service provider against any action brought as a result of the interruption of a communications service authorized by that order. The bill would allow a person whose communications service has been interrupted pursuant to these provisions to petition the superior court to contest the grounds for interruption and restore the interrupted service.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law authorizes a supervising law enforcement official with 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, to order a telephone corporation security employee to arrange to cut, reroute, or divert telephone lines for the purpose of preventing telephone communication by the suspected person with any person other than a peace officer or person authorized by a peace officer. Existing law, until January 1, 2020, prohibits a governmental entity and a provider of communications service 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 service for an illegal purpose, except pursuant to an order signed by a judicial officer, as specified. Existing law allows the order to authorize an interruption of communications 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 communications service provider to cease the interruption. Existing law authorizes interruption of a communications service without first obtaining a court order under extreme emergency situations, as specified.
This bill would repeal all of those provisions. This bill would instead prohibit any government entity, or service provider acting at the request of a government entity, from interrupting a communication service either to prevent the communications service from being used for an illegal purpose or to protect public health, safety, or welfare. The bill would authorize a government entity to interrupt a communications service for either of those purposes in an extreme emergency situation, as specified, or if the interruption is authorized by a court order. The bill would require the application for a court order under its provisions to require specified information, and would authorize the court to grant the order if specified conditions are met, including, among other things, there is probable cause that the communication is being or will be used for an unlawful purpose and that absent immediate and summary action to interrupt the communication service, serious, direct, and immediate danger to public health, safety, or welfare will result. The bill would require the order to contain specified information, including a statement of the duration of the authorized interruption.
The bill would require a government entity interrupting a communications service due to an extreme emergency situation to apply for a court order without delay, and if possible, to file the application within 6 hours after commencement of interruption. The bill would require the government entity, if it does not apply for an application within 6 hours, to apply within 24 hours after commencement of the interruption and include a declaration under penalty of perjury stating the reason for the delay. By expanding the crime of perjury, this bill would create a state-mandated local program.
The bill would provide that good faith reliance by a service provider on a court order issued pursuant to these provisions is a defense for the service provider against any action brought as a result of the interruption of a communications service authorized by that order. The bill would allow a person whose communications service has been interrupted pursuant to these provisions to petition the superior court to contest the grounds for interruption and restore the interrupted service.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law authorizes a supervising law enforcement official with 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, to order a telephone corporation security employee to arrange to cut, reroute, or divert telephone lines for the purpose of preventing telephone communication by the suspected person with any person other than a peace officer or person authorized by a peace officer. Existing law, until January 1, 2020, prohibits a governmental entity and a provider of communications service 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 service for an illegal purpose, except pursuant to an order signed by a judicial officer, as specified. Existing law allows the order to authorize an interruption of communications 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 communications service provider to cease the interruption. Existing law authorizes interruption of a communications service without first obtaining a court order under extreme emergency situations, as specified.
This bill would repeal all of those provisions. This bill would instead prohibit any government entity, or service provider acting at the request of a government entity, from interrupting a communication service either to prevent the communications service from being used for an illegal purpose or to protect public health, safety, or welfare. The bill would authorize a government entity to interrupt a communications service for either of those purposes in an extreme emergency situation, as specified, or if the interruption is authorized by a court order. The bill would require the application for a court order under its provisions to require specified information, and would authorize the court to grant the order if specified conditions are met, including, among other things, there is probable cause that the communication is being or will be used for an unlawful purpose and that absent immediate and summary action to interrupt the communication service, serious, direct, and immediate danger to public health, safety, or welfare will result. The bill would require the order to contain specified information, including a statement of the duration of the authorized interruption.
The bill would require a government entity interrupting a communications service due to an extreme emergency situation to apply for a court order without delay, and if possible, to file the application within 6 hours after commencement of interruption. The bill would require the government entity, if it does not apply for an application within 6 hours, to apply within 24 hours after commencement of the interruption and include a declaration under penalty of perjury stating the reason for the delay. By expanding the crime of perjury, this bill would create a state-mandated local program.
The bill would provide that good faith reliance by a service provider on a court order issued pursuant to these provisions is a defense for the service provider against any action brought as a result of the interruption of a communications service authorized by that order. The bill would allow a person whose communications service has been interrupted pursuant to these provisions to petition the superior court to contest the grounds for interruption and restore the interrupted service.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law authorizes a supervising law enforcement official with 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, to order a telephone corporation security employee to arrange to cut, reroute, or divert telephone lines for the purpose of preventing telephone communication by the suspected person with any person other than a peace officer or person authorized by a peace officer. Existing law, until January 1, 2020, prohibits a governmental entity and a provider of communications service 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 service for an illegal purpose, except pursuant to an order signed by a judicial officer, as specified. Existing law allows the order to authorize an interruption of communications 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 communications service provider to cease the interruption. Existing law authorizes interruption of a communications service without first obtaining a court order under extreme emergency situations, as specified.
This bill would repeal all of those provisions. This bill would instead prohibit any government entity, or service provider acting at the request of a government entity, from interrupting a communication service either to prevent the communications service from being used for an illegal purpose or to protect public health, safety, or welfare. The bill would authorize a government entity to interrupt a communications service for either of those purposes in an extreme emergency situation, as specified, or if the interruption is authorized by a court order. The bill would require the application for a court order under its provisions to require specified information, and would authorize the court to grant the order if specified conditions are met, including, among other things, there is probable cause that the communication is being or will be used for an unlawful purpose and that absent immediate and summary action to interrupt the communication service, serious, direct, and immediate danger to public health, safety, or welfare will result. The bill would require the order to contain specified information, including a statement of the duration of the authorized interruption.
The bill would require a government entity interrupting a communications service due to an extreme emergency situation to apply for a court order without delay, and if possible, to file the application within 6 hours after commencement of interruption. The bill would require the government entity, if it does not apply for an application within 6 hours, to apply within 24 hours after commencement of the interruption and include a declaration under penalty of perjury stating the reason for the delay. By expanding the crime of perjury, this bill would create a state-mandated local program.
The bill would provide that good faith reliance by a service provider on a court order issued pursuant to these provisions is a defense for the service provider against any action brought as a result of the interruption of a communications service authorized by that order. The bill would allow a person whose communications service has been interrupted pursuant to these provisions to petition the superior court to contest the grounds for interruption and restore the interrupted service.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law authorizes a supervising law enforcement official with 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, to order a telephone corporation security employee to arrange to cut, reroute, or divert telephone lines for the purpose of preventing telephone communication by the suspected person with any person other than a peace officer or person authorized by a peace officer. Existing law, until January 1, 2020, prohibits a governmental entity and a provider of communications service acting at the request of a governmental entity, entity from interrupting 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, as specified. Existing law allows the order to authorize an interruption of communications 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 communications service provider to cease the interruption. Existing law authorizes interruption of a communications service without first obtaining a court order under extreme emergency situations, as specified.
This bill would repeal all of those provisions. This bill would instead prohibit any government entity, or service provider acting at the request of a government entity, from interrupting a communication service either to prevent the communications service from being used for an illegal purpose or to protect public health, safety, or welfare. The bill would authorize a government entity to interrupt a communications service for either of those purposes in an extreme emergency situation, as specified, or if the interruption is authorized by a court order. The bill would require the application for a court order under its provisions to require specified information, and would authorize the court to grant the order if specified conditions are met, including, among other things, there is probable cause that the communication is being or will be used for an unlawful purpose and that absent immediate and summary action to interrupt the communication service, serious, direct, and immediate danger to public health, safety, or welfare will result. The bill would require the order to contain specified information, including a statement of the duration of the authorized interruption.
The bill would require a government entity interrupting a communications service due to an extreme emergency situation to apply for a court order without delay, and if possible, to file the application within 6 hours after commencement of interruption. The bill would require the government entity, if it does not apply for an application within 6 hours, to apply within 24 hours after commencement of the interruption and include a declaration under penalty of perjury stating the reason for the delay. By expanding the crime of perjury, this bill would create a state-mandated local program.
The bill would provide that good faith reliance by a service provider on a court order issued pursuant to these provisions is a defense for the service provider against any action brought as a result of the interruption of a communications service authorized by that order. The bill would allow a person whose communications service has been interrupted pursuant to these provisions to petition the superior court to contest the grounds for interruption and restore the interrupted service.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law authorizes a supervising law enforcement official with 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, to order a telephone corporation security employee to arrange to cut, reroute, or divert telephone lines for the purpose of preventing telephone communication by the suspected person with any person other than a peace officer or person authorized by a peace officer. Existing law, until January 1, 2020, prohibits a governmental entity and a provider of communications service 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 service for an illegal purpose, except pursuant to an order signed by a judicial officer, as specified. Existing law allows the order to authorize an interruption of communications 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 communications service provider to cease the interruption. Existing law authorizes interruption of a communications service without first obtaining a court order under extreme emergency situations, as specified.
This bill would repeal all of those provisions. This bill would instead prohibit any government entity, or service provider acting at the request of a government entity, from interrupting a communication service either to prevent the communications service from being used for an illegal purpose or to protect public health, safety, or welfare. The bill would authorize a government entity to interrupt a communications service for either of those purposes in an extreme emergency situation, as specified, or if the interruption is authorized by a court order. The bill would require the application for a court order under its provisions to require specified information, and would authorize the court to grant the order if specified conditions are met, including, among other things, there is probable cause that the communication is being or will be used for an unlawful purpose and that absent immediate and summary action to interrupt the communication service, serious, direct, and immediate danger to public health, safety, or welfare will result. The bill would require the order to contain specified information, including a statement of the duration of the authorized interruption.
The bill would require a government entity interrupting a communications service due to an extreme emergency situation to apply for a court order without delay, and if possible, to file the application within 6 hours after commencement of interruption. The bill would require the government entity, if it does not apply for an application within 6 hours, to apply within 24 hours after commencement of the interruption and include a declaration under penalty of perjury stating the reason for the delay. By expanding the crime of perjury, this bill would create a state-mandated local program.
The bill would provide that good faith reliance by a service provider on a court order issued pursuant to these provisions is a defense for the service provider against any action brought as a result of the interruption of a communications service authorized by that order. The bill would allow a person whose communications service has been interrupted pursuant to these provisions to petition the superior court to contest the grounds for interruption and restore the interrupted service.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
For the purposes of this article, the following terms have the following meanings:
(a)Communication service means any communication 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.
(b)Government 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.
(c)Interrupt communication service means to knowingly or intentionally suspend, disconnect, interrupt, or disrupt a communication service to one or more particular customers or all customers in a geographical area.
(d)Judicial officer means a magistrate, judge, commissioner, referee, or any person appointed by a court to serve in one of these capacities, of a superior court.
(e)Service provider means a person or entity, including a government entity, that offers a communication service.
11471.(a)Except as authorized by this article, no government entity, and no service provider acting at the request of a government entity, shall interrupt a communication service for either of the following purposes:
(1)To prevent the communication service from being used for an illegal purpose.
(2)To protect public health, safety, or welfare.
(b)A government entity may interrupt a communication service for a purpose stated in subdivision (a) in any of the following circumstances:
(1)The interruption is authorized by a court order pursuant to Section 11473.
(2)The government entity reasonably determines that (A) the interruption is required to address an extreme emergency situation that involves immediate danger of death or great bodily injury, (B) there is insufficient time, with due diligence, to first obtain a court order under Section 11473, and (C) the interruption meets the grounds for issuance of a court order under Section 11473. A government entity acting pursuant to this paragraph shall comply with Section 11475.
(3)Notwithstanding Section 591, 631, or 632, or Section 7906 of the Public Utilities Code, a supervising law enforcement official with jurisdiction may require that a service provider interrupt a communication service that is available to a person if (A) the law enforcement official has probable cause to believe that the person is holding hostages and is committing a crime, or is barricaded and is resisting apprehension through the use or threatened use of force, and (B) the purpose of the interruption is to prevent the person from communicating with anyone other than a peace officer or a person authorized by a peace officer. This paragraph does not authorize the interruption of communication service to a wireless device other than a wireless device used or available for use by the person or persons involved in a hostage or barricade situation.
11472.(a)An application by a government entity for a court order authorizing the interruption of a communication service shall be made in writing upon the personal oath or affirmation of the chief executive of the government entity or his or her designee, to the presiding judge of the superior court or a judicial officer designated by the presiding judge for that purpose.
(b)Each application shall include all of the following information:
(1)The identity of the government entity making the application.
(2)A statement attesting to a review of the application and the circumstances in support of the application by the chief executive officer of the government entity making the application, or his or her designee. This statement shall state the name and office of the person who effected this review.
(3)A full and complete statement of the facts and circumstances relied on by the government entity to justify a reasonable belief that the order should be issued, including the facts and circumstances that support the statements made in paragraphs (4) to (7), inclusive.
(4)A statement that probable cause exists to believe that the communication service to be interrupted is being used or will be used for an unlawful purpose or to assist in a violation of the law. The statement shall expressly identify the unlawful purpose or violation of the law.
(5)A statement that immediate and summary action is needed to avoid serious, direct, and immediate danger to public health, safety, or welfare.
(6)A statement that the proposed interruption is narrowly tailored to the specific circumstances under which the order is made and would not interfere with more communication than is necessary to achieve the purposes of the order.
(7)A statement that the proposed interruption would leave open ample alternative means of communication.
(8)A statement that the government entity has considered the practical disadvantages of the proposed interruption, including any disruption of emergency communication service.
(9)A description of the scope and duration of the proposed interruption. The application shall clearly describe the specific communication service to be interrupted with sufficient detail as to customer, cell sector, central office, or geographical area affected.
(c)The judicial officer may require the applicant to furnish additional testimony or documentary evidence in support of an application for an order under this section.
(d)The judicial officer shall accept a facsimile copy of the signature of any person required to give a personal oath or affirmation pursuant to subdivision (a) as an original signature to the application.
11473.Upon application made under Section 11472, the judicial officer may enter an ex parte order, as requested or modified, authorizing interruption of a communication service in the territorial jurisdiction in which the judicial officer is sitting, if the judicial officer determines, on the basis of the facts submitted by the applicant, that all of the following requirements are satisfied:
(a)There is probable cause that the communication service is being or will be used for an unlawful purpose or to assist in a violation of the law.
(b)Absent immediate and summary action to interrupt the communication service, serious, direct, and immediate danger to public health, safety, or welfare will result.
(c)The interruption of communication 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 a violation of any other rights under federal or state law.
(d)The interruption of a communication service would leave open ample alternative means of communication.
11474.An order authorizing an interruption of a communication service shall include all of the following:
(a)A statement of the courts findings required by Section 11473.
(b)A clear description of the communication service to be interrupted, with specific detail as to the affected service, service provider, and customer or geographical area.
(c)A statement of the period of time during which the interruption is authorized. The order may provide for a fixed duration or require that the government end the interruption when it determines that the interruption is no longer reasonably necessary because the danger that justified the interruption has abated. If the judicial officer finds that probable cause exists that a particular communication service is being used or will be used as part of a continuing criminal enterprise, the court may order the permanent termination of that service and require that the terminated service not be referred to another communication service.
(d)A requirement that the government entity immediately serve notice on the service provider when the interruption is to cease.
11475.A government entity that interrupts a communication service pursuant to paragraph (2) of subdivision (b) of Section 11471 shall take all of the following steps:
(a)Apply for a court order under Section 11472 without delay. If possible, the application shall be filed within six hours after commencement of the interruption. If that is not possible, the application shall be filed at the first reasonably available opportunity, but in no event later than 24 hours after commencement of an interruption of a communication service. If an application is filed more than six hours after commencement of an interruption of a communication service, the application shall include a declaration, made under penalty of perjury, stating the reason for the delay.
(b)Prepare a signed statement of intent to apply for a court order. The statement of intent shall clearly describe the extreme emergency situation and the specific communication service to be interrupted. If a government entity does not apply for a court order within six hours, the government entity shall submit a copy of the signed statement of intent to the court within six hours.
(c)Provide conspicuous notice of the application for a court order on the government entitys Internet Web site without delay, unless the circumstances that justify an interruption of a communication service without first obtaining a court order also justify not providing the notice.
11476.(a)If an order issued pursuant to Section 11473 or a signed statement of intent prepared pursuant to Section 11475 would authorize the interruption of a communication service for all customers of the interrupted communication service within a geographical area, the government entity shall serve the order or statement on the Governors Office of Emergency Services.
(b)The Governors Office of Emergency Services shall have policy discretion on whether to request that the federal government authorize and effect the proposed interruption.
11477.If an order issued pursuant to Section 11473 or a signed statement of intent prepared pursuant to Section 11475 is not governed by Section 11476, the government entity shall serve the order or statement on both of the following persons:
(a)The appropriate service providers contact for receiving requests from law enforcement, including receipt of state or federal warrants, orders, or subpoenas.
(b)The affected customer, if the identity of the customer is known. When serving an affected customer, the government entity shall provide notice of the opportunity for judicial review under Section 11479.
11478.(a)Good faith reliance by a service provider on a court order issued pursuant to Section 11473, a signed statement of intent prepared pursuant to Section 11475, or the instruction of a supervising law enforcement officer acting pursuant to paragraph (3) of subdivision (b) of Section 11471 shall constitute a complete defense for the service provider against any action brought as a result of the interruption of a communication service authorized by that court order, statement of intent, or instruction.
(b)A communications service provider shall designate a security employee and an alternate security employee, to provide all required assistance to law enforcement officials to carry out the purposes of this article.
(c)A service provider that intentionally interrupts communication service pursuant to this article shall comply with any rule or notification requirement of the Public Utilities Commission or Federal Communications Commission, or both, and any other applicable provision or requirement of state or federal law.
11479.(a)A person whose communication service has been interrupted pursuant to this article may petition the superior court to contest the grounds for the interruption and restore the interrupted service.
(b)The remedy provided in this section is not exclusive. Other laws may provide a remedy for a person who is aggrieved by an interruption of a communication service authorized by this chapter.
11480.The Legislature finds and declares that ensuring that California users of any communication 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.
11481.(a)This article does not apply to any of the following actions:
(1)The interruption of a communication service with the consent of the affected customer.
(2)The interruption of a communication service pursuant to a customer service agreement, contract, or tariff.
(3)The interruption of a communication service to protect the security of the communication network or other computing resources of a government entity or service provider.
(4)The interruption of a communication service to prevent unauthorized wireless communication by a prisoner in a state or local correctional facility, including a juvenile facility.
(5)The interruption of a communication service to transmit an emergency notice that includes, but is not limited to, an Amber Alert, a message transmitted through the federal Emergency Alert System, or a message transmitted through the federal Wireless Emergency Alert System.
(6)An interruption of a communication service pursuant to a statute that expressly authorizes an interruption of a communication service, including Sections 149 and 7099.10 of the Business and Professions Code and Sections 2876, 5322, and 5371.6 of the Public Utilities Code.
(7)An interruption of communication service that results from the execution of a search warrant.
(b)Nothing in this section provides authority for an action of a type listed in subdivision (a) or limits any remedy that may be available under law if an action of a type listed in subdivision (a) is taken unlawfully.
11482.This article does not restrict, expand, or otherwise modify the authority of the Public Utilities Commission.
SEC. 2.Section 7907 of the Public Utilities Code is repealed.SEC. 3.Section 7908 of the Public Utilities Code is repealed.SEC. 4.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
For the purposes of this article, the following terms have the following meanings:
(a)Communication service means any communication 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.
(b)Government 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.
(c)Interrupt communication service means to knowingly or intentionally suspend, disconnect, interrupt, or disrupt a communication service to one or more particular customers or all customers in a geographical area.
(d)Judicial officer means a magistrate, judge, commissioner, referee, or any person appointed by a court to serve in one of these capacities, of a superior court.
(e)Service provider means a person or entity, including a government entity, that offers a communication service.
11471.(a)Except as authorized by this article, no government entity, and no service provider acting at the request of a government entity, shall interrupt a communication service for either of the following purposes:
(1)To prevent the communication service from being used for an illegal purpose.
(2)To protect public health, safety, or welfare.
(b)A government entity may interrupt a communication service for a purpose stated in subdivision (a) in any of the following circumstances:
(1)The interruption is authorized by a court order pursuant to Section 11473.
(2)The government entity reasonably determines that (A) the interruption is required to address an extreme emergency situation that involves immediate danger of death or great bodily injury, (B) there is insufficient time, with due diligence, to first obtain a court order under Section 11473, and (C) the interruption meets the grounds for issuance of a court order under Section 11473. A government entity acting pursuant to this paragraph shall comply with Section 11475.
(3)Notwithstanding Section 591, 631, or 632, or Section 7906 of the Public Utilities Code, a supervising law enforcement official with jurisdiction may require that a service provider interrupt a communication service that is available to a person if (A) the law enforcement official has probable cause to believe that the person is holding hostages and is committing a crime, or is barricaded and is resisting apprehension through the use or threatened use of force, and (B) the purpose of the interruption is to prevent the person from communicating with anyone other than a peace officer or a person authorized by a peace officer. This paragraph does not authorize the interruption of communication service to a wireless device other than a wireless device used or available for use by the person or persons involved in a hostage or barricade situation.
11472.(a)An application by a government entity for a court order authorizing the interruption of a communication service shall be made in writing upon the personal oath or affirmation of the chief executive of the government entity or his or her designee, to the presiding judge of the superior court or a judicial officer designated by the presiding judge for that purpose.
(b)Each application shall include all of the following information:
(1)The identity of the government entity making the application.
(2)A statement attesting to a review of the application and the circumstances in support of the application by the chief executive officer of the government entity making the application, or his or her designee. This statement shall state the name and office of the person who effected this review.
(3)A full and complete statement of the facts and circumstances relied on by the government entity to justify a reasonable belief that the order should be issued, including the facts and circumstances that support the statements made in paragraphs (4) to (7), inclusive.
(4)A statement that probable cause exists to believe that the communication service to be interrupted is being used or will be used for an unlawful purpose or to assist in a violation of the law. The statement shall expressly identify the unlawful purpose or violation of the law.
(5)A statement that immediate and summary action is needed to avoid serious, direct, and immediate danger to public health, safety, or welfare.
(6)A statement that the proposed interruption is narrowly tailored to the specific circumstances under which the order is made and would not interfere with more communication than is necessary to achieve the purposes of the order.
(7)A statement that the proposed interruption would leave open ample alternative means of communication.
(8)A statement that the government entity has considered the practical disadvantages of the proposed interruption, including any disruption of emergency communication service.
(9)A description of the scope and duration of the proposed interruption. The application shall clearly describe the specific communication service to be interrupted with sufficient detail as to customer, cell sector, central office, or geographical area affected.
(c)The judicial officer may require the applicant to furnish additional testimony or documentary evidence in support of an application for an order under this section.
(d)The judicial officer shall accept a facsimile copy of the signature of any person required to give a personal oath or affirmation pursuant to subdivision (a) as an original signature to the application.
11473.Upon application made under Section 11472, the judicial officer may enter an ex parte order, as requested or modified, authorizing interruption of a communication service in the territorial jurisdiction in which the judicial officer is sitting, if the judicial officer determines, on the basis of the facts submitted by the applicant, that all of the following requirements are satisfied:
(a)There is probable cause that the communication service is being or will be used for an unlawful purpose or to assist in a violation of the law.
(b)Absent immediate and summary action to interrupt the communication service, serious, direct, and immediate danger to public health, safety, or welfare will result.
(c)The interruption of communication 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 a violation of any other rights under federal or state law.
(d)The interruption of a communication service would leave open ample alternative means of communication.
11474.An order authorizing an interruption of a communication service shall include all of the following:
(a)A statement of the courts findings required by Section 11473.
(b)A clear description of the communication service to be interrupted, with specific detail as to the affected service, service provider, and customer or geographical area.
(c)A statement of the period of time during which the interruption is authorized. The order may provide for a fixed duration or require that the government end the interruption when it determines that the interruption is no longer reasonably necessary because the danger that justified the interruption has abated. If the judicial officer finds that probable cause exists that a particular communication service is being used or will be used as part of a continuing criminal enterprise, the court may order the permanent termination of that service and require that the terminated service not be referred to another communication service.
(d)A requirement that the government entity immediately serve notice on the service provider when the interruption is to cease.
11475.A government entity that interrupts a communication service pursuant to paragraph (2) of subdivision (b) of Section 11471 shall take all of the following steps:
(a)Apply for a court order under Section 11472 without delay. If possible, the application shall be filed within six hours after commencement of the interruption. If that is not possible, the application shall be filed at the first reasonably available opportunity, but in no event later than 24 hours after commencement of an interruption of a communication service. If an application is filed more than six hours after commencement of an interruption of a communication service, the application shall include a declaration, made under penalty of perjury, stating the reason for the delay.
(b)Prepare a signed statement of intent to apply for a court order. The statement of intent shall clearly describe the extreme emergency situation and the specific communication service to be interrupted. If a government entity does not apply for a court order within six hours, the government entity shall submit a copy of the signed statement of intent to the court within six hours.
(c)Provide conspicuous notice of the application for a court order on the government entitys Internet Web site without delay, unless the circumstances that justify an interruption of a communication service without first obtaining a court order also justify not providing the notice.
11476.(a)If an order issued pursuant to Section 11473 or a signed statement of intent prepared pursuant to Section 11475 would authorize the interruption of a communication service for all customers of the interrupted communication service within a geographical area, the government entity shall serve the order or statement on the Governors Office of Emergency Services.
(b)The Governors Office of Emergency Services shall have policy discretion on whether to request that the federal government authorize and effect the proposed interruption.
11477.If an order issued pursuant to Section 11473 or a signed statement of intent prepared pursuant to Section 11475 is not governed by Section 11476, the government entity shall serve the order or statement on both of the following persons:
(a)The appropriate service providers contact for receiving requests from law enforcement, including receipt of state or federal warrants, orders, or subpoenas.
(b)The affected customer, if the identity of the customer is known. When serving an affected customer, the government entity shall provide notice of the opportunity for judicial review under Section 11479.
11478.(a)Good faith reliance by a service provider on a court order issued pursuant to Section 11473, a signed statement of intent prepared pursuant to Section 11475, or the instruction of a supervising law enforcement officer acting pursuant to paragraph (3) of subdivision (b) of Section 11471 shall constitute a complete defense for the service provider against any action brought as a result of the interruption of a communication service authorized by that court order, statement of intent, or instruction.
(b)A communications service provider shall designate a security employee and an alternate security employee, to provide all required assistance to law enforcement officials to carry out the purposes of this article.
(c)A service provider that intentionally interrupts communication service pursuant to this article shall comply with any rule or notification requirement of the Public Utilities Commission or Federal Communications Commission, or both, and any other applicable provision or requirement of state or federal law.
11479.(a)A person whose communication service has been interrupted pursuant to this article may petition the superior court to contest the grounds for the interruption and restore the interrupted service.
(b)The remedy provided in this section is not exclusive. Other laws may provide a remedy for a person who is aggrieved by an interruption of a communication service authorized by this chapter.
11480.The Legislature finds and declares that ensuring that California users of any communication 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.
11481.(a)This article does not apply to any of the following actions:
(1)The interruption of a communication service with the consent of the affected customer.
(2)The interruption of a communication service pursuant to a customer service agreement, contract, or tariff.
(3)The interruption of a communication service to protect the security of the communication network or other computing resources of a government entity or service provider.
(4)The interruption of a communication service to prevent unauthorized wireless communication by a prisoner in a state or local correctional facility, including a juvenile facility.
(5)The interruption of a communication service to transmit an emergency notice that includes, but is not limited to, an Amber Alert, a message transmitted through the federal Emergency Alert System, or a message transmitted through the federal Wireless Emergency Alert System.
(6)An interruption of a communication service pursuant to a statute that expressly authorizes an interruption of a communication service, including Sections 149 and 7099.10 of the Business and Professions Code and Sections 2876, 5322, and 5371.6 of the Public Utilities Code.
(7)An interruption of communication service that results from the execution of a search warrant.
(b)Nothing in this section provides authority for an action of a type listed in subdivision (a) or limits any remedy that may be available under law if an action of a type listed in subdivision (a) is taken unlawfully.
11482.This article does not restrict, expand, or otherwise modify the authority of the Public Utilities Commission.
SEC. 2.Section 7907 of the Public Utilities Code is repealed.SEC. 3.Section 7908 of the Public Utilities Code is repealed.SEC. 4.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
For the purposes of this article, the following terms have the following meanings:
(a)Communication service means any communication 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.
(b)Government 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.
(c)Interrupt communication service means to knowingly or intentionally suspend, disconnect, interrupt, or disrupt a communication service to one or more particular customers or all customers in a geographical area.
(d)Judicial officer means a magistrate, judge, commissioner, referee, or any person appointed by a court to serve in one of these capacities, of a superior court.
(e)Service provider means a person or entity, including a government entity, that offers a communication service.
11471.(a)Except as authorized by this article, no government entity, and no service provider acting at the request of a government entity, shall interrupt a communication service for either of the following purposes:
(1)To prevent the communication service from being used for an illegal purpose.
(2)To protect public health, safety, or welfare.
(b)A government entity may interrupt a communication service for a purpose stated in subdivision (a) in any of the following circumstances:
(1)The interruption is authorized by a court order pursuant to Section 11473.
(2)The government entity reasonably determines that (A) the interruption is required to address an extreme emergency situation that involves immediate danger of death or great bodily injury, (B) there is insufficient time, with due diligence, to first obtain a court order under Section 11473, and (C) the interruption meets the grounds for issuance of a court order under Section 11473. A government entity acting pursuant to this paragraph shall comply with Section 11475.
(3)Notwithstanding Section 591, 631, or 632, or Section 7906 of the Public Utilities Code, a supervising law enforcement official with jurisdiction may require that a service provider interrupt a communication service that is available to a person if (A) the law enforcement official has probable cause to believe that the person is holding hostages and is committing a crime, or is barricaded and is resisting apprehension through the use or threatened use of force, and (B) the purpose of the interruption is to prevent the person from communicating with anyone other than a peace officer or a person authorized by a peace officer. This paragraph does not authorize the interruption of communication service to a wireless device other than a wireless device used or available for use by the person or persons involved in a hostage or barricade situation.
11472.(a)An application by a government entity for a court order authorizing the interruption of a communication service shall be made in writing upon the personal oath or affirmation of the chief executive of the government entity or his or her designee, to the presiding judge of the superior court or a judicial officer designated by the presiding judge for that purpose.
(b)Each application shall include all of the following information:
(1)The identity of the government entity making the application.
(2)A statement attesting to a review of the application and the circumstances in support of the application by the chief executive officer of the government entity making the application, or his or her designee. This statement shall state the name and office of the person who effected this review.
(3)A full and complete statement of the facts and circumstances relied on by the government entity to justify a reasonable belief that the order should be issued, including the facts and circumstances that support the statements made in paragraphs (4) to (7), inclusive.
(4)A statement that probable cause exists to believe that the communication service to be interrupted is being used or will be used for an unlawful purpose or to assist in a violation of the law. The statement shall expressly identify the unlawful purpose or violation of the law.
(5)A statement that immediate and summary action is needed to avoid serious, direct, and immediate danger to public health, safety, or welfare.
(6)A statement that the proposed interruption is narrowly tailored to the specific circumstances under which the order is made and would not interfere with more communication than is necessary to achieve the purposes of the order.
(7)A statement that the proposed interruption would leave open ample alternative means of communication.
(8)A statement that the government entity has considered the practical disadvantages of the proposed interruption, including any disruption of emergency communication service.
(9)A description of the scope and duration of the proposed interruption. The application shall clearly describe the specific communication service to be interrupted with sufficient detail as to customer, cell sector, central office, or geographical area affected.
(c)The judicial officer may require the applicant to furnish additional testimony or documentary evidence in support of an application for an order under this section.
(d)The judicial officer shall accept a facsimile copy of the signature of any person required to give a personal oath or affirmation pursuant to subdivision (a) as an original signature to the application.
11473.Upon application made under Section 11472, the judicial officer may enter an ex parte order, as requested or modified, authorizing interruption of a communication service in the territorial jurisdiction in which the judicial officer is sitting, if the judicial officer determines, on the basis of the facts submitted by the applicant, that all of the following requirements are satisfied:
(a)There is probable cause that the communication service is being or will be used for an unlawful purpose or to assist in a violation of the law.
(b)Absent immediate and summary action to interrupt the communication service, serious, direct, and immediate danger to public health, safety, or welfare will result.
(c)The interruption of communication 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 a violation of any other rights under federal or state law.
(d)The interruption of a communication service would leave open ample alternative means of communication.
11474.An order authorizing an interruption of a communication service shall include all of the following:
(a)A statement of the courts findings required by Section 11473.
(b)A clear description of the communication service to be interrupted, with specific detail as to the affected service, service provider, and customer or geographical area.
(c)A statement of the period of time during which the interruption is authorized. The order may provide for a fixed duration or require that the government end the interruption when it determines that the interruption is no longer reasonably necessary because the danger that justified the interruption has abated. If the judicial officer finds that probable cause exists that a particular communication service is being used or will be used as part of a continuing criminal enterprise, the court may order the permanent termination of that service and require that the terminated service not be referred to another communication service.
(d)A requirement that the government entity immediately serve notice on the service provider when the interruption is to cease.
11475.A government entity that interrupts a communication service pursuant to paragraph (2) of subdivision (b) of Section 11471 shall take all of the following steps:
(a)Apply for a court order under Section 11472 without delay. If possible, the application shall be filed within six hours after commencement of the interruption. If that is not possible, the application shall be filed at the first reasonably available opportunity, but in no event later than 24 hours after commencement of an interruption of a communication service. If an application is filed more than six hours after commencement of an interruption of a communication service, the application shall include a declaration, made under penalty of perjury, stating the reason for the delay.
(b)Prepare a signed statement of intent to apply for a court order. The statement of intent shall clearly describe the extreme emergency situation and the specific communication service to be interrupted. If a government entity does not apply for a court order within six hours, the government entity shall submit a copy of the signed statement of intent to the court within six hours.
(c)Provide conspicuous notice of the application for a court order on the government entitys Internet Web site without delay, unless the circumstances that justify an interruption of a communication service without first obtaining a court order also justify not providing the notice.
11476.(a)If an order issued pursuant to Section 11473 or a signed statement of intent prepared pursuant to Section 11475 would authorize the interruption of a communication service for all customers of the interrupted communication service within a geographical area, the government entity shall serve the order or statement on the Governors Office of Emergency Services.
(b)The Governors Office of Emergency Services shall have policy discretion on whether to request that the federal government authorize and effect the proposed interruption.
11477.If an order issued pursuant to Section 11473 or a signed statement of intent prepared pursuant to Section 11475 is not governed by Section 11476, the government entity shall serve the order or statement on both of the following persons:
(a)The appropriate service providers contact for receiving requests from law enforcement, including receipt of state or federal warrants, orders, or subpoenas.
(b)The affected customer, if the identity of the customer is known. When serving an affected customer, the government entity shall provide notice of the opportunity for judicial review under Section 11479.
11478.(a)Good faith reliance by a service provider on a court order issued pursuant to Section 11473, a signed statement of intent prepared pursuant to Section 11475, or the instruction of a supervising law enforcement officer acting pursuant to paragraph (3) of subdivision (b) of Section 11471 shall constitute a complete defense for the service provider against any action brought as a result of the interruption of a communication service authorized by that court order, statement of intent, or instruction.
(b)A communications service provider shall designate a security employee and an alternate security employee, to provide all required assistance to law enforcement officials to carry out the purposes of this article.
(c)A service provider that intentionally interrupts communication service pursuant to this article shall comply with any rule or notification requirement of the Public Utilities Commission or Federal Communications Commission, or both, and any other applicable provision or requirement of state or federal law.
11479.(a)A person whose communication service has been interrupted pursuant to this article may petition the superior court to contest the grounds for the interruption and restore the interrupted service.
(b)The remedy provided in this section is not exclusive. Other laws may provide a remedy for a person who is aggrieved by an interruption of a communication service authorized by this chapter.
11480.The Legislature finds and declares that ensuring that California users of any communication 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.
11481.(a)This article does not apply to any of the following actions:
(1)The interruption of a communication service with the consent of the affected customer.
(2)The interruption of a communication service pursuant to a customer service agreement, contract, or tariff.
(3)The interruption of a communication service to protect the security of the communication network or other computing resources of a government entity or service provider.
(4)The interruption of a communication service to prevent unauthorized wireless communication by a prisoner in a state or local correctional facility, including a juvenile facility.
(5)The interruption of a communication service to transmit an emergency notice that includes, but is not limited to, an Amber Alert, a message transmitted through the federal Emergency Alert System, or a message transmitted through the federal Wireless Emergency Alert System.
(6)An interruption of a communication service pursuant to a statute that expressly authorizes an interruption of a communication service, including Sections 149 and 7099.10 of the Business and Professions Code and Sections 2876, 5322, and 5371.6 of the Public Utilities Code.
(7)An interruption of communication service that results from the execution of a search warrant.
(b)Nothing in this section provides authority for an action of a type listed in subdivision (a) or limits any remedy that may be available under law if an action of a type listed in subdivision (a) is taken unlawfully.
11482.This article does not restrict, expand, or otherwise modify the authority of the Public Utilities Commission.
SEC. 2.Section 7907 of the Public Utilities Code is repealed.SEC. 3.Section 7908 of the Public Utilities Code is repealed.SEC. 4.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
For the purposes of this article, the following terms have the following meanings:
(a)Communication service means any communication 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.
(b)Government 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.
(c)Interrupt communication service means to knowingly or intentionally suspend, disconnect, interrupt, or disrupt a communication service to one or more particular customers or all customers in a geographical area.
(d)Judicial officer means a magistrate, judge, commissioner, referee, or any person appointed by a court to serve in one of these capacities, of a superior court.
(e)Service provider means a person or entity, including a government entity, that offers a communication service.
11471.(a)Except as authorized by this article, no government entity, and no service provider acting at the request of a government entity, shall interrupt a communication service for either of the following purposes:
(1)To prevent the communication service from being used for an illegal purpose.
(2)To protect public health, safety, or welfare.
(b)A government entity may interrupt a communication service for a purpose stated in subdivision (a) in any of the following circumstances:
(1)The interruption is authorized by a court order pursuant to Section 11473.
(2)The government entity reasonably determines that (A) the interruption is required to address an extreme emergency situation that involves immediate danger of death or great bodily injury, (B) there is insufficient time, with due diligence, to first obtain a court order under Section 11473, and (C) the interruption meets the grounds for issuance of a court order under Section 11473. A government entity acting pursuant to this paragraph shall comply with Section 11475.
(3)Notwithstanding Section 591, 631, or 632, or Section 7906 of the Public Utilities Code, a supervising law enforcement official with jurisdiction may require that a service provider interrupt a communication service that is available to a person if (A) the law enforcement official has probable cause to believe that the person is holding hostages and is committing a crime, or is barricaded and is resisting apprehension through the use or threatened use of force, and (B) the purpose of the interruption is to prevent the person from communicating with anyone other than a peace officer or a person authorized by a peace officer. This paragraph does not authorize the interruption of communication service to a wireless device other than a wireless device used or available for use by the person or persons involved in a hostage or barricade situation.
11472.(a)An application by a government entity for a court order authorizing the interruption of a communication service shall be made in writing upon the personal oath or affirmation of the chief executive of the government entity or his or her designee, to the presiding judge of the superior court or a judicial officer designated by the presiding judge for that purpose.
(b)Each application shall include all of the following information:
(1)The identity of the government entity making the application.
(2)A statement attesting to a review of the application and the circumstances in support of the application by the chief executive officer of the government entity making the application, or his or her designee. This statement shall state the name and office of the person who effected this review.
(3)A full and complete statement of the facts and circumstances relied on by the government entity to justify a reasonable belief that the order should be issued, including the facts and circumstances that support the statements made in paragraphs (4) to (7), inclusive.
(4)A statement that probable cause exists to believe that the communication service to be interrupted is being used or will be used for an unlawful purpose or to assist in a violation of the law. The statement shall expressly identify the unlawful purpose or violation of the law.
(5)A statement that immediate and summary action is needed to avoid serious, direct, and immediate danger to public health, safety, or welfare.
(6)A statement that the proposed interruption is narrowly tailored to the specific circumstances under which the order is made and would not interfere with more communication than is necessary to achieve the purposes of the order.
(7)A statement that the proposed interruption would leave open ample alternative means of communication.
(8)A statement that the government entity has considered the practical disadvantages of the proposed interruption, including any disruption of emergency communication service.
(9)A description of the scope and duration of the proposed interruption. The application shall clearly describe the specific communication service to be interrupted with sufficient detail as to customer, cell sector, central office, or geographical area affected.
(c)The judicial officer may require the applicant to furnish additional testimony or documentary evidence in support of an application for an order under this section.
(d)The judicial officer shall accept a facsimile copy of the signature of any person required to give a personal oath or affirmation pursuant to subdivision (a) as an original signature to the application.
11473.Upon application made under Section 11472, the judicial officer may enter an ex parte order, as requested or modified, authorizing interruption of a communication service in the territorial jurisdiction in which the judicial officer is sitting, if the judicial officer determines, on the basis of the facts submitted by the applicant, that all of the following requirements are satisfied:
(a)There is probable cause that the communication service is being or will be used for an unlawful purpose or to assist in a violation of the law.
(b)Absent immediate and summary action to interrupt the communication service, serious, direct, and immediate danger to public health, safety, or welfare will result.
(c)The interruption of communication 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 a violation of any other rights under federal or state law.
(d)The interruption of a communication service would leave open ample alternative means of communication.
11474.An order authorizing an interruption of a communication service shall include all of the following:
(a)A statement of the courts findings required by Section 11473.
(b)A clear description of the communication service to be interrupted, with specific detail as to the affected service, service provider, and customer or geographical area.
(c)A statement of the period of time during which the interception interruption is authorized. The order may provide for a fixed duration or require that the government end the interruption when it determines that the interruption is no longer reasonably necessary because the danger that justified the interruption has abated. If the judicial officer finds that probable cause exists that a particular communication service is being used or will be used as part of a continuing criminal enterprise, the court may order the permanent termination of that service and require that the terminated service not be referred to another communication service.
(d)A requirement that the government entity immediately serve notice on the service provider when the interruption is to cease.
11475.A government entity that interrupts a communication service pursuant to paragraph (2) of subdivision (b) of Section 11471 shall take all of the following steps:
(a)Apply for a court order under Section 11472 without delay. If possible, the application shall be filed within six hours after commencement of the interruption. If that is not possible, the application shall be filed at the first reasonably available opportunity, but in no event later than 24 hours after commencement of an interruption of a communication service. If an application is filed more than six hours after commencement of an interruption of a communication service, the application shall include a declaration, made under penalty of perjury, stating the reason for the delay.
(b)Prepare a signed statement of intent to apply for a court order. The statement of intent shall clearly describe the extreme emergency situation and the specific communication service to be interrupted. If a government entity does not apply for a court order within six hours, the government entity shall submit a copy of the signed statement of intent to the court within six hours.
(c)Provide conspicuous notice of the application for a court order on the government entitys Internet Web site without delay, unless the circumstances that justify an interruption of a communication service without first obtaining a court order also justify not providing the notice.
11476.(a)If an order issued pursuant to Section 11473 or a signed statement of intent prepared pursuant to Section 11475 would authorize the interruption of a communication service for all customers of the interrupted communication service within a geographical area, the government entity shall serve the order or statement on the Governors Office of Emergency Services.
(b)The Governors Office of Emergency Services shall have policy discretion on whether to request that the federal government authorize and effect the proposed interruption.
11477.If an order issued pursuant to Section 11473 or a signed statement of intent prepared pursuant to Section 11475 is not governed by Section 11476, the government entity shall serve the order or statement on both of the following persons:
(a)The appropriate service providers contact for receiving requests from law enforcement, including receipt of state or federal warrants, orders, or subpoenas.
(b)The affected customer, if the identity of the customer is known. When serving an affected customer, the government entity shall provide notice of the opportunity for judicial review under Section 11479.
11478.(a)Good faith reliance by a service provider on a court order issued pursuant to Section 11473, a signed statement of intent prepared pursuant to Section 11475, or the instruction of a supervising law enforcement officer acting pursuant to paragraph (3) of subdivision (b) of Section 11471 shall constitute a complete defense for the service provider against any action brought as a result of the interruption of a communication service authorized by that court order, statement of intent, or instruction.
(b)A communications service provider shall designate a security employee and an alternate security employee, to provide all required assistance to law enforcement officials to carry out the purposes of this article.
(c)A service provider that intentionally interrupts communication service pursuant to this article shall comply with any rule or notification requirement of the Public Utilities Commission or Federal Communications Commission, or both, and any other applicable provision or requirement of state or federal law.
11479.(a)A person whose communication service has been interrupted pursuant to this article may petition the superior court to contest the grounds for the interruption and restore the interrupted service.
(b)The remedy provided in this section is not exclusive. Other law laws may provide a remedy for a person who is aggrieved by an interruption of a communication service authorized by this chapter.
11480.The Legislature finds and declares that ensuring that California users of any communication 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.
11481.(a)This article does not apply to any of the following actions:
(1)The interruption of a communication service with the consent of the affected customer.
(2)The interruption of a communication service pursuant to a customer service agreement, contract, or tariff.
(3)The interruption of a communication service to protect the security of the communication network or other computing resources of a government entity or service provider.
(4)The interruption of a communication service to prevent unauthorized wireless communication by a prisoner in a state or local correctional facility, including a juvenile facility.
(5)The interruption of a communication service to transmit an emergency notice that includes, but is not limited to, an Amber Alert, a message transmitted through the federal Emergency Alert System, or a message transmitted through the federal Wireless Emergency Alert System.
(6)An interruption of a communication service pursuant to a statute that expressly authorizes an interruption of a communication service, including Sections 149 and 7099.10 of the Business and Professions Code and Sections 2876, 5322, and 5371.6 of the Public Utilities Code.
(7)An interruption of communication service that results from the execution of a search warrant.
(b)Nothing in this section provides authority for an action of a type listed in subdivision (a) or limits any remedy that may be available under law if an action of a type listed in subdivision (a) is taken unlawfully.
SEC. 2.Section 7907 of the Public Utilities Code is repealed.SEC. 3.Section 7908 of the Public Utilities Code is repealed.SEC. 4.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
For the purposes of this article, the following terms have the following meanings:
(a)Communication service means any communication 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.
(b)Government 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.
(c)Interrupt communication service means to knowingly or intentionally suspend, disconnect, interrupt, or disrupt a communication service to one or more particular customers or all customers in a geographical area.
(d)Judicial officer means a magistrate, judge, commissioner, referee, or any person appointed by a court to serve in one of these capacities, of a superior court.
(e)Service provider means a person or entity, including a government entity, that offers a communication service.
11471.(a)Except as authorized by this article, no government entity, and no service provider acting at the request of a government entity, shall interrupt a communication service for either of the following purposes:
(1)To prevent the communication service from being used for an illegal purpose.
(2)To protect public health, safety, or welfare.
(b)A government entity may interrupt a communication service for a purpose stated in subdivision (a) in any of the following circumstances:
(1)The interruption is authorized by a court order pursuant to Section 11473.
(2)The government entity reasonably determines that (A) the interruption is required to address an extreme emergency situation that involves immediate danger of death or great bodily injury, (B) there is insufficient time, with due diligence, to first obtain a court order under Section 11473, and (C) the interruption meets the grounds for issuance of a court order under Section 11473. A government entity acting pursuant to this paragraph shall comply with Section 11475.
(3)Notwithstanding Section 591, 631, or 632, or Section 7906 of the Public Utilities Code, a supervising law enforcement official with jurisdiction may require that a service provider interrupt a communication service that is available to a person if (A) the law enforcement official has probable cause to believe that the person is holding hostages and is committing a crime, or is barricaded and is resisting apprehension through the use or threatened use of force, and (B) the purpose of the interruption is to prevent the person from communicating with anyone other than a peace officer or a person authorized by a peace officer. This paragraph does not authorize the interruption of communication service to a wireless device other than a wireless device used or available for use by the person or persons involved in a hostage or barricade situation.
11472.(a)An application by a government entity for a court order authorizing the interruption of a communication service shall be made in writing upon the personal oath or affirmation of the chief executive of the government entity or his or her designee, to the presiding judge of the superior court or a judicial officer designated by the presiding judge for that purpose.
(b)Each application shall include all of the following information:
(1)The identity of the government entity making the application.
(2)A statement attesting to a review of the application and the circumstances in support of the application by the chief executive officer of the government entity making the application, or his or her designee. This statement shall state the name and office of the person who effected this review.
(3)A full and complete statement of the facts and circumstances relied on by the government entity to justify a reasonable belief that the order should be issued, including the facts and circumstances that support the statements made in paragraphs (4) to (7), inclusive.
(4)A statement that probable cause exists to believe that the communication service to be interrupted is being used or will be used for an unlawful purpose or to assist in a violation of the law. The statement shall expressly identify the unlawful purpose or violation of the law.
(5)A statement that immediate and summary action is needed to avoid serious, direct, and immediate danger to public health, safety, or welfare.
(6)A statement that the proposed interruption is narrowly tailored to the specific circumstances under which the order is made and would not interfere with more communication than is necessary to achieve the purposes of the order.
(7)A statement that the proposed interruption would leave open ample alternative means of communication.
(8)A statement that the government entity has considered the practical disadvantages of the proposed interruption, including any disruption of emergency communication service.
(9)A description of the scope and duration of the proposed interruption. The application shall clearly describe the specific communication service to be interrupted with sufficient detail as to customer, cell sector, central office, or geographical area affected.
(c)The judicial officer may require the applicant to furnish additional testimony or documentary evidence in support of an application for an order under this section.
(d)The judicial officer shall accept a facsimile copy of the signature of any person required to give a personal oath or affirmation pursuant to subdivision (a) as an original signature to the application.
11473.Upon application made under Section 11472, the judicial officer may enter an ex parte order, as requested or modified, authorizing interruption of a communication service in the territorial jurisdiction in which the judicial officer is sitting, if the judicial officer determines, on the basis of the facts submitted by the applicant, that all of the following requirements are satisfied:
(a)There is probable cause that the communication service is being or will be used for an unlawful purpose or to assist in a violation of the law.
(b)Absent immediate and summary action to interrupt the communication service, serious, direct, and immediate danger to public health, safety, or welfare will result.
(c)The interruption of communication 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 a violation of any other rights under federal or state law.
(d)The interruption of a communication service would leave open ample alternative means of communication.
11474.An order authorizing an interruption of a communication service shall include all of the following:
(a)A statement of the courts findings required by Section 11473.
(b)A clear description of the communication service to be interrupted, with specific detail as to the affected service, service provider, and customer or geographical area.
(c)A statement of the period of time during which the interception is authorized. The order may provide for a fixed duration or require that the government end the interruption when it determines that the interruption is no longer reasonably necessary because the danger that justified the interruption has abated. If the judicial officer finds that probable cause exists that a particular communication service is being used or will be used as part of a continuing criminal enterprise, the court may order the permanent termination of that service and require that the terminated service not be referred to another communication service.
(d)A requirement that the government entity immediately serve notice on the service provider when the interruption is to cease.
11475.A government entity that interrupts a communication service pursuant to paragraph (2) of subdivision (b) of Section 11471 shall take all of the following steps:
(a)Apply for a court order under Section 11472 without delay. If possible, the application shall be filed within six hours after commencement of the interruption. If that is not possible, the application shall be filed at the first reasonably available opportunity, but in no event later than 24 hours after commencement of an interruption of a communication service. If an application is filed more than six hours after commencement of an interruption of a communication service, the application shall include a declaration, made under penalty of perjury, stating the reason for the delay.
(b)Prepare a signed statement of intent to apply for a court order. The statement of intent shall clearly describe the extreme emergency situation and the specific communication service to be interrupted. If a government entity does not apply for a court order within six hours, the government entity shall submit a copy of the signed statement of intent to the court within six hours.
(c)Provide conspicuous notice of the application for a court order on the government entitys Internet Web site without delay, unless the circumstances that justify an interruption of a communication service without first obtaining a court order also justify not providing the notice.
11476.(a)If an order issued pursuant to Section 11473 or a signed statement of intent prepared pursuant to Section 11475 would authorize the interruption of a communication service for all customers of the interrupted communication service within a geographical area, the government entity shall serve the order or statement on the Governors Office of Emergency Services.
(b)The Governors Office of Emergency Services shall have policy discretion on whether to proceed with the proposed interruption. request that the federal government authorize and effect the proposed interruption.
11477.If an order issued pursuant to Section 11473 or a signed statement of intent prepared pursuant to Section 11475 is not governed by Section 11476, the government entity shall serve the order or statement on both of the following persons:
(a)The appropriate service providers contact for receiving requests from law enforcement, including receipt of state or federal warrants, orders, or subpoenas.
(b)The affected customer, if the identity of the customer is known. When serving an affected customer, the government entity shall provide notice of the opportunity for judicial review under Section 11479.
11478.(a)Good faith reliance by a service provider on a court order issued pursuant to Section 11473, a signed statement of intent prepared pursuant to Section 11475, or the instruction of a supervising law enforcement officer acting pursuant to paragraph (3) of subdivision (b) of Section 11471 shall constitute a complete defense for the service provider against any action brought as a result of the interruption of a communication service authorized by that court order, statement of intent, or instruction.
(b)A service provider shall designate a security employee and an alternate security employee, to provide all required assistance to law enforcement officials to carry out the purposes of this article.
(c)A service provider that intentionally interrupts communication service pursuant to this article shall comply with any rule or notification requirement of the Public Utilities Commission or Federal Communications Commission, or both, and any other applicable provision or requirement of state or federal law.
11479.(a)A person whose communication service has been interrupted pursuant to this article may petition the superior court to contest the grounds for the interruption and restore the interrupted service.
(b)The remedy provided in this section is not exclusive. Other law may provide a remedy for a person who is aggrieved by an interruption of a communication service authorized by this chapter.
11480.The Legislature finds and declares that ensuring that California users of any communication 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.
11481.(a)This article does not apply to any of the following actions:
(1)The interruption of a communication service with the consent of the affected customer.
(2)The interruption of a communication service pursuant to a customer service agreement, contract, or tariff.
(3)The interruption of a communication service to protect the security of the communication network or other computing resources of a government entity or service provider.
(4)The interruption of a communication service to prevent unauthorized wireless communication by a prisoner in a state or local correctional facility, including a juvenile facility.
(5)The interruption of a communication service to transmit an emergency notice that includes, but is not limited to, an Amber Alert, a message transmitted through the federal Emergency Alert System, or a message transmitted through the federal Wireless Emergency Alert System.
(6)An interruption of a communication service pursuant to a statute that expressly authorizes an interruption of a communication service, including Sections 149 and 7099.10 of the Business and Professions Code and Sections 2876, 5322, and 5371.6 of the Public Utilities Code.
(7)An interruption of communication that results from the execution of a search warrant.
(b)Nothing in this section provides authority for an action of a type listed in subdivision (a) or limits any remedy that may be available under law if an action of a type listed in subdivision (a) is taken unlawfully.
SEC. 2.Section 7907 of the Public Utilities Code is repealed.SEC. 3.Section 7908 of the Public Utilities Code is repealed.SEC. 4.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
For the purposes of this article, the following terms have the following meanings:
(a)Communication service means any communication 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.
(b)Government 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.
(c)Interrupt communication service means to knowingly or intentionally suspend, disconnect, interrupt, or disrupt a communication service to one or more particular customers or all customers in a geographical area.
(d)Judicial officer means a magistrate, judge, commissioner, referee, or any person appointed by a court to serve in one of these capacities, of a superior court.
(e)Service provider means a person or entity, including a government entity, that offers a communication service.
11471.(a)Except as authorized by this article, no government entity, and no service provider acting at the request of a government entity, shall interrupt a communication service for either of the following purposes:
(1)To prevent the communication service from being used for an illegal purpose.
(2)To protect public health, safety, or welfare.
(b)A government entity may interrupt a communication service for a purpose stated in subdivision (a) in any of the following circumstances:
(1)The interruption is authorized by a court order pursuant to Section 11473.
(2)The government entity reasonably determines that (A) the interruption is required to address an extreme emergency situation that involves immediate danger of death or great bodily injury, (B) there is insufficient time, with due diligence, to first obtain a court order under Section 11473, and (C) the interruption meets the grounds for issuance of a court order under Section 11473. A government entity acting pursuant to this paragraph shall comply with Section 11475.
(3)Notwithstanding Section 591, 631, or 632, or Section 7906 of the Public Utilities Code, a supervising law enforcement official with jurisdiction may require that a service provider interrupt a communication service that is available to a person if (A) the law enforcement official has probable cause to believe that the person is holding hostages and is committing a crime, or is barricaded and is resisting apprehension through the use or threatened use of force, and (B) the purpose of the interruption is to prevent the person from communicating with anyone other than a peace officer or a person authorized by a peace officer. This paragraph does not authorize the interruption of communication service to a wireless device other than a wireless device used or available for use by the person or persons involved in a hostage or barricade situation.
11472.(a)An application by a government entity for a court order authorizing the interruption of a communication service shall be made in writing upon the personal oath or affirmation of the chief executive of the government entity or his or her designee, to the presiding judge of the superior court or a judicial officer designated by the presiding judge for that purpose.
(b)Each application shall include all of the following information:
(1)The identity of the government entity making the application.
(2)A statement attesting to a review of the application and the circumstances in support of the application by the chief executive officer of the government entity making the application, or his or her designee. This statement shall state the name and office of the person who effected this review.
(3)A full and complete statement of the facts and circumstances relied on by the government entity to justify a reasonable belief that the order should be issued, including the facts and circumstances that support the statements made in paragraphs (4) to (7), inclusive.
(4)A statement that probable cause exists to believe that the communication service to be interrupted is being used or will be used for an unlawful purpose or to assist in a violation of the law. The statement shall expressly identify the unlawful purpose or violation of the law.
(5)A statement that immediate and summary action is needed to avoid serious, direct, and immediate danger to public health, safety, or welfare.
(6)A statement that the proposed interruption is narrowly tailored to the specific circumstances under which the order is made and would not interfere with more communication than is necessary to achieve the purposes of the order.
(7)A statement that the proposed interruption would leave open ample alternative means of communication.
(8)A statement that the government entity has considered the practical disadvantages of the proposed interruption, including any disruption of emergency communication service.
(9)A description of the scope and duration of the proposed interruption. The application shall clearly describe the specific communication service to be interrupted with sufficient detail as to customer, cell sector, central office, or geographical area affected.
(c)The judicial officer may require the applicant to furnish additional testimony or documentary evidence in support of an application for an order under this section.
(d)The judicial officer shall accept a facsimile copy of the signature of any person required to give a personal oath or affirmation pursuant to subdivision (a) as an original signature to the application.
11473.Upon application made under Section 11472, the judicial officer may enter an ex parte order, as requested or modified, authorizing interruption of a communication service in the territorial jurisdiction in which the judicial officer is sitting, if the judicial officer determines, on the basis of the facts submitted by the applicant, that all of the following requirements are satisfied:
(a)There is probable cause that the communication service is being or will be used for an unlawful purpose or to assist in a violation of the law.
(b)Absent immediate and summary action to interrupt the communication service, serious, direct, and immediate danger to public health, safety, or welfare will result.
(c)The interruption of communication 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 a violation of any other rights under federal or state law.
(d)The interruption of a communication service would leave open ample alternative means of communication.
11474.An order authorizing an interruption of a communication service shall include all of the following:
(a)A statement of the courts findings required by Section 11473.
(b)A clear description of the communication service to be interrupted, with specific detail as to the affected service, service provider, and customer or geographical area.
(c)A statement of the period of time during which the interception is authorized. The order may provide for a fixed duration or require that the government end the interruption when it determines that the interruption is no longer reasonably necessary because the danger that justified the interruption has abated. If the judicial officer finds that probable cause exists that a particular communication service is being used or will be used as part of a continuing criminal enterprise, the court may order the permanent termination of that service and require that the terminated service not be referred to another communication service.
(d)A requirement that the government entity immediately serve notice on the service provider when the interruption is to cease.
11475.A government entity that interrupts a communication service pursuant to paragraph (2) of subdivision (b) of Section 11471 shall take all of the following steps:
(a)Apply for a court order under Section 11472 without delay. If possible, the application shall be filed within six hours after commencement of the interruption. If that is not possible, the application shall be filed at the first reasonably available opportunity, but in no event later than 24 hours after commencement of an interruption of a communication service. If an application is filed more than six hours after commencement of an interruption of a communication service, the application shall include a declaration, made under penalty of perjury, stating the reason for the delay.
(b)Prepare a signed statement of intent to apply for a court order. The statement of intent shall clearly describe the extreme emergency situation and the specific communication service to be interrupted. If a government entity does not apply for a court order within six hours, the government entity shall submit a copy of the signed statement of intent to the court within six hours.
(c)Provide conspicuous notice of the application for a court order on the government entitys Internet Web site without delay, unless the circumstances that justify an interruption of a communication service without first obtaining a court order also justify not providing the notice.
11476.(a)If an order issued pursuant to Section 11473 or a signed statement of intent prepared pursuant to Section 11475 would authorize the interruption of a communication service for all customers of the interrupted communication service within a geographical area, the government entity shall serve the order or statement on the Governors Office of Emergency Services.
(b)The Governors Office of Emergency Services shall have policy discretion on whether to proceed with the proposed interruption.
11477.If an order issued pursuant to Section 11473 or a signed statement of intent prepared pursuant to Section 11475 is not governed by Section 11476, the government entity shall serve the order or statement on both of the following persons:
(a)The appropriate service providers contact for receiving requests from law enforcement, including receipt of state or federal warrants, orders, or subpoenas.
(b)The affected customer, if the identity of the customer is known. When serving an affected customer, the government entity shall provide notice of the opportunity for judicial review under Section 11479.
11478.(a)Good faith reliance by a service provider on a court order issued pursuant to Section 11473, a signed statement of intent prepared pursuant to Section 11475, or the instruction of a supervising law enforcement officer acting pursuant to paragraph (3) of subdivision (b) of Section 11471 shall constitute a complete defense for the service provider against any action brought as a result of the interruption of a communication service authorized by that court order, statement of intent, or instruction.
(b)A service provider shall designate a security employee and an alternate security employee, to provide all required assistance to law enforcement officials to carry out the purposes of this article.
(c)A service provider that intentionally interrupts communication service pursuant to this article shall comply with any rule or notification requirement of the Public Utilities Commission or Federal Communications Commission, or both, and any other applicable provision or requirement of state or federal law.
11479.(a)A person whose communication service has been interrupted pursuant to this article may petition the superior court to contest the grounds for the interruption and restore the interrupted service.
(b)The remedy provided in this section is not exclusive. Other law may provide a remedy for a person who is aggrieved by an interruption of a communication service authorized by this chapter.
11480.The Legislature finds and declares that ensuring that California users of any communication 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.
11481.(a)This article does not apply to any of the following actions:
(1)The interruption of a communication service with the consent of the affected customer.
(2)The interruption of a communication service pursuant to a customer service agreement, contract, or tariff.
(3)The interruption of a communication service to protect the security of the communication network or other computing resources of a government entity or service provider.
(4)The interruption of a communication service to prevent unauthorized wireless communication by a prisoner in a state or local correctional facility, including a juvenile facility.
(5)The interruption of a communication service to transmit an emergency notice that includes, but is not limited to, an Amber Alert, a message transmitted through the federal Emergency Alert System, or a message transmitted through the federal Wireless Emergency Alert System.
(6)An interruption of a communication service pursuant to a statute that expressly authorizes an interruption of a communication service, including Sections 149 and 7099.10 of the Business and Professions Code and Sections 2876, 5322, and 5371.6 of the Public Utilities Code.
(7)An interruption of communication that results from the execution of a search warrant.
(b)Nothing in this section provides authority for an action of a type listed in subdivision (a) or limits any remedy that may be available under law if an action of a type listed in subdivision (a) is taken unlawfully.
SEC. 2.Section 7907 of the Public Utilities Code is repealed.7907.Notwithstanding Section 591, 631, or 632 of the Penal Code or Section 7906 of this code, whenever the supervising law enforcement official having jurisdiction 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, such official may order a previously designated telephone corporation security employee to arrange to cut, reroute, or divert telephone lines for the purpose of preventing telephone communication by such suspected person with any person other than a peace officer or a person authorized by the peace officer.The telephone corporation shall designate a person as its security employee and an alternate to provide all required assistance to law enforcement officials to carry out the purposes of this section.Good faith reliance on an order by a supervising law enforcement official shall constitute a complete defense to any action brought under this section.SEC. 3.Section 7908 of the Public Utilities Code is repealed.7908.(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)(A)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.(B)Interrupt communications service does not include any interruption of communications service pursuant to a customer service agreement, a contract, a tariff, a providers 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 Section 4575 or subdivision (d) of Section 4576 of the Penal Code.(C)Interrupt communications service does not include any interruption of service pursuant to an order to cut, reroute, or divert service to a telephone line or wireless device used or available for use for communication by a person or persons in a hostage or barricade situation pursuant to Section 7907. However, interruption of communications service includes any interruption of service resulting from an order pursuant to Section 7907 that affects service to wireless devices other than any wireless device used by, or available for use by, the person or persons involved in a hostage or barricade situation.(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 (c), 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 obtained prior to the interruption. The order shall include 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, and immediate danger to public safety, health, or welfare 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 a violation of 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 communications 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)(1)Communications service shall not be interrupted without first obtaining a court order except pursuant to this subdivision.(2)If a governmental entity reasonably determines that an extreme emergency situation exists that involves immediate danger of death or great bodily injury and there is insufficient time, with due diligence, to first obtain a court order, then the governmental entity may interrupt communications service without first obtaining a court order as required by this section, provided that the interruption meets the grounds for issuance of a court order pursuant to subdivision (b) and that the governmental entity does all of the following:(A)(i)Applies for a court order authorizing the interruption of communications service without delay, but within six hours after commencement of an interruption of communications service except as provided in clause (ii).(ii)If it is not possible to apply for a court order within six hours due to an emergency, the governmental entity shall apply for a court order at the first reasonably available opportunity, but in no event later than 24 hours after commencement of an interruption of communications service. If an application is filed more than six hours after commencement of an interruption of communications service pursuant to this clause, the application shall include a declaration under penalty of perjury stating the reason or reasons that the application was not submitted within six hours after commencement of the interruption of communications service.(B)Provides to 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. If a governmental entity does not apply for a court order within 6 hours due to the emergency, then the governmental entity shall submit a copy of the signed statement of intent to the court within 6 hours.(C)Provides 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 service without first obtaining a court order justify not providing the notice.(d)An order to interrupt communications service, or a signed statement of intent provided pursuant to subdivision (c), 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 providers contact for receiving requests from law enforcement, including receipt of and responding to state or federal warrants, orders, or subpoenas.(e)A provider of communications service that intentionally interrupts communications service pursuant to this section 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)Good faith reliance by a communications service provider upon an order of a judicial officer authorizing the interruption of communications service pursuant to subdivision (b), or upon a signed statement of intent to apply for a court order pursuant to subdivision (c), 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.(g)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.(h)This section shall remain in effect only until January 1, 2020, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2020, deletes or extends that date.SEC. 4.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
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Date
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Status
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|---|---|
| Sep 27, 2017 | Chaptered by Secretary of State - Chapter 322, Statutes of 2017. |
| Sep 27, 2017 | Approved by the Governor. |
| Sep 12, 2017 | Enrolled and presented to the Governor at 2:30 p.m. |
| Sep 5, 2017 | Senate amendments concurred in. To Engrossing and Enrolling. (Ayes 76. Noes 0.). |
| Aug 31, 2017 | In Assembly. Concurrence in Senate amendments pending. May be considered on or after September 2 pursuant to Assembly Rule 77. |
| Aug 31, 2017 | Read third time. Passed. Ordered to the Assembly. |
| Aug 28, 2017 | Read second time. Ordered to third reading. |
| Aug 24, 2017 | Read third time and amended. Ordered to second reading. |
| Aug 24, 2017 | From Consent Calendar. |
| Aug 22, 2017 | Read second time. Ordered to Consent Calendar. |
| Aug 21, 2017 | From committee: Be placed on second reading file pursuant to Senate Rule 28.8 and ordered to consent calendar. |
| Jul 12, 2017 | From committee: Do pass and re-refer to Com. on APPR. with recommendation: To Consent Calendar. (Ayes 7. Noes 0.) (July 11). Re-referred to Com. on APPR. |
| Jul 5, 2017 | Read second time and amended. Re-referred to Com. on JUD. |
| Jul 3, 2017 | From committee: Amend, and do pass as amended and re-refer to Com. on JUD. (Ayes 9. Noes 0.) (July 3). |
| Jun 20, 2017 | From committee: Do pass and re-refer to Com. on E., U. & C. with recommendation: To Consent Calendar. (Ayes 7. Noes 0.) (June 20). Re-referred to Com. on E., U. & C. |
| Jun 8, 2017 | Referred to Coms. on PUB. S., E., U. & C. and JUD. |
| May 30, 2017 | In Senate. Read first time. To Com. on RLS. for assignment. |
| May 30, 2017 | Read third time. Passed. Ordered to the Senate. (Ayes 77. Noes 0. Page 1857.) |
| May 25, 2017 | Read second time. Ordered to Consent Calendar. |
| May 24, 2017 | From committee: Do pass. To Consent Calendar. (Ayes 17. Noes 0.) (May 24). |
| May 18, 2017 | Re-referred to Com. on APPR. |
| May 17, 2017 | From committee chair, with author's amendments: Amend, and re-refer to Com. on APPR. Read second time and amended. |
| May 17, 2017 | In committee: Hearing postponed by committee. |
| Apr 18, 2017 | From committee: Do pass and re-refer to Com. on APPR. with recommendation: To Consent Calendar. (Ayes 11. Noes 0.) (April 18). Re-referred to Com. on APPR. |
| Apr 6, 2017 | From committee: Do pass and re-refer to Com. on JUD. with recommendation: To Consent Calendar. (Ayes 13. Noes 0.) (April 5). Re-referred to Com. on JUD. |
| Mar 9, 2017 | Referred to Coms. on C. & C. and JUD. |
| Feb 17, 2017 | From printer. May be heard in committee March 19. |
| Feb 16, 2017 | Read first time. To print. |
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Date
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Description
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Location
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Votes
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|---|---|---|---|---|
| Sep 5, 2017 | AB 1034 CHAU Concurrence in Senate Amendments | Assembly Floor |
Passed |
|
| Aug 31, 2017 | Assembly 3rd Reading AB1034 Chau By Roth | Senate Floor |
Passed |
|
| Jul 11, 2017 | Do pass, but first be re-referred to the Committee on [Appropriations] with the recommendation: To Consent Calendar | Senate Standing Committee on Judiciary |
Passed |
|
| Jul 3, 2017 | Do pass as amended, but first amend, and re-refer to the Committee on [Judiciary] | Senate Standing Committee on Energy, Utilities and Communications |
Passed |
|
| Jun 20, 2017 | Do pass, but first be re-referred to the Committee on [Energy, Utilities and Communications] with the recommendation: To Consent Calendar | Senate Standing Committee on Public Safety |
Passed |
|
| May 30, 2017 | AB 1034 CHAU Consent Calendar Second Day Regular Session | Assembly Floor |
Passed |
|
| May 24, 2017 | Do pass. To Consent Calendar. | Assembly Standing Committee on Appropriations |
Passed |
|
| Apr 18, 2017 | Do pass and be re-referred to the Committee on [Appropriations] with recommendation: To Consent Calendar | Assembly Standing Committee on Judiciary |
Passed |
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| Apr 5, 2017 | Do pass and be re-referred to the Committee on [Judiciary] with recommendation: To Consent Calendar | Assembly Standing Committee on Communications and Conveyance |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
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| California Law Revision Commission | ** Support | Aug 30, 2017 |
CONCURRENCE IN SENATE AMENDMENTS
CSA1 Bill Id:AB 1034
Author:(Chau)
As Amended Ver:August 24, 2017
Majority vote
ASSEMBLY: | 77-0 | (May 30, 2017) | SENATE: | 38-0 | (August 31, 2017) |
Original Committee Reference: C. & C.
SUMMARY: Implements various recommendations by the California Law Revision Commission (CLRC) related to government interruption of communication service statutes.
The Senate amendments make non-substantive technical and clarifying changes.
EXISTING LAW:
- Establishes the CLRC and authorizes it to study topics approved by concurrent resolution of the Legislature. (Government Code Section 8280 and 8293)
- Authorizes a supervising law enforcement official with jurisdiction and 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, to order a previously designated telephone corporation security employee to arrange to cut, reroute, or divert telephone lines for the purpose of preventing telephone communication by such suspected person with any person other than a peace officer or a person authorized by the peace officer. (Public Utilities Code (PUC) Section 7907)
- Prohibits a governmental entity or provider of communications service, acting at the request of a governmental entity, to 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 obtained prior to the interruption. (PUC Section 7908)
- Authorizes a governmental entity that reasonably determines that an extreme emergency situation exists that involves immediate danger of death or great bodily injury and there is insufficient time, with due diligence, to first obtain a court order, to interrupt communications service without first obtaining a court order, as specified. (PUC Section 7908)
- Requires an order to interrupt communications service, or a specified signed statement of intent, that falls within the federal Emergency Wireless Protocol to be served on the California Governor's Office of Emergency Services. 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. (PUC Section 7908)
FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS:
- Author Statement: "AB 1034 would implement a number of reforms recommended by the CLRC to address problems they identified with the government interruption of communications services process. First, the bill extends the sunset on [Public Utilities Code] Section 7908. Second, to protect a customer's due process rights, it would establish an opportunity for post-interruption judicial review. Third, it would replace the existing reference to an interruption that 'falls within the federal Emergency Wireless Protocol' with a reference to an interruption of 'communication service for all customers of the interrupted communications service within a geographical area' in order to minimize confusion about the role of the Office of Emergency Services in this process. Fourth, AB 1034 would add exceptions to the court authorization requirements, to minimize unnecessary burdens on law enforcement and the courts, for [specified] interruptions. Finally, the bill would borrow procedural language from the wiretap law to provide details and procedural clarity on how to apply for a court order authorizing an interruption of communication service."
- Background: The CLRC is an independent state agency created in 1953 to examine California law and recommend needed reforms to the Legislature and Governor. The CLRC is required to establish a report containing a calendar of topics that it wishes to study and to study any topic that the Legislature refers to it, through concurrent resolution or statute. In 2013, the Legislature enacted SCR 54 (Padilla), Chapter 115, Statutes of 2013, which directed the CLRC to study the constitutionality of government interruption of communication service and propose reforms to improve procedures used to take such actions.
SCR 54 argued that revising and updating statutes related to the governance of state and local agency access to customer information from communications service providers is necessary to reflect modern technologies and clarify the rights and responsibilities of customers, communications service providers, and government agencies seeking to access customer information. Existing law includes an array of restrictions, authorizations, and exemptions, related to government interruption of communication services scattered across California Code. Providing greater coherence and consistency may very well provide state and local government agencies with a clearer framework and legal standard for when government can obtain customer information and from whom. The CLRC completed its study required under SCR 54 and provided their recommendations in December 2016. This bill implements the CLRC recommendations.
Analysis Prepared by: Edmond Cheung / C. & C. / (916) 319-2637 FN: 0001564
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB |
âTHIRD READING â
Bill No: AB 1034
:
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/20/17
AYES: Skinner, Anderson, Bradford, Jackson, Mitchell, Stone, Wiener
SENATE ENERGY, U. & C. COMMITTEE: 9-0, 7/3/17
AYES: Hueso, Bradford, Cannella, Hertzberg, McGuire, Skinner, Stern, Vidak, Wiener
NO VOTE RECORDED: Morrell, Hill
SENATE JUDICIARY COMMITTEE: 7-0, 7/11/17
AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 77-0, 5/30/17 (Consent) - See last page for vote
â
SOURCE: California Law Revision Commission
DIGEST:
This bill takes the existing sections of the public utility code that govern the ability of a government entity to interrupt communication services â under certain emergency circumstances â and modifies and places them in the Penal Code, as recommended by the California law revision commission.
Senate Floor Amendments of 8/24/17 clarify that this bill does not restrict, expand or otherwise modify the authority of the Public Utilities Commission.
Existing law:
- Establishes the CLRC and authorizes it to study topics approved by concurrent resolution of the Legislature. (Government Code §§ 8280 and 8293.)
- Authorizes a supervising law enforcement official with jurisdiction and 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, to order a previously designated telephone corporation security employee to arrange to cut, reroute, or divert telephone lines for the purpose of preventing telephone communication by such suspected person with any person other than a peace officer or a person authorized by the peace officer. (Public Utilities Code (PUC) § 7907.)
- Prohibits a governmental entity or provider of communications service, acting at the request of a governmental entity, to 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 obtained prior to the interruption. (PUC § 7908.)
- Authorizes a governmental entity that reasonably determines that an extreme emergency situation exists that involves immediate danger of death or great bodily injury and there is insufficient time, with due diligence, to first obtain a court order, to interrupt communications service without first obtaining a court order, as specified. (PUC § 7908.)
- Requires an order to interrupt communications service, or a specified signed statement of intent, that falls within the federal Emergency Wireless Protocol (EWP) to be served on the California Governorâs Office of Emergency Services (Cal OES). All other orders to interrupt communications service or statements of intent shall be served on the communications service providerâs contact for receiving requests from law enforcement, including receipt of and responding to state or federal warrants, orders, or subpoenas. (PUC § 7908)
This bill takes the existing provisions in the PUC and moves them to the Penal Code with a few substantive changes including: providing for a post-interruption judicial review in cases in which the government entity terminates service without prior warning; clarifying references; clarifies the procedure for applying for the court order; and, adding additional exceptions for interruptions.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
California Law Revision Commission (source)
OPPOSITION: (Verified 8/25/17)
ASSEMBLY FLOOR: 77-0, 5/30/17
AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bocanegra, Bonta, Brough, Burke, Caballero, Calderon, Cervantes, ChĂĄvez, Chen, Chiu, Chu, Cooley, Cooper, Cunningham, Dababneh, Dahle, Daly, Flora, Fong, Frazier, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gomez, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, LimĂłn, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Ridley-Thomas, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon
NO VOTE RECORDED: Chau, Choi, Eggman
8/30/17 17:33:24
**** END ****
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB |
âCONSENT â
Bill No: AB 1034
:
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/20/17
AYES: Skinner, Anderson, Bradford, Jackson, Mitchell, Stone, Wiener
SENATE ENERGY, U. & C. COMMITTEE: 9-0, 7/3/17
AYES: Hueso, Bradford, Cannella, Hertzberg, McGuire, Skinner, Stern, Vidak, Wiener
NO VOTE RECORDED: Morrell, Hill
SENATE JUDICIARY COMMITTEE: 7-0, 7/11/17
AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 77-0, 5/30/17 (Consent) - See last page for vote
â
SOURCE: California Law Revision Commission
DIGEST:
This bill takes the existing sections of the public utility code that govern the ability of a government entity to interrupt communication services â under certain emergency circumstances â and modifies and places them in the Penal Code, as recommended by the California law revision commission.
Existing law:
- Establishes the CLRC and authorizes it to study topics approved by concurrent resolution of the Legislature. (Government Code §§ 8280 and 8293.)
- Authorizes a supervising law enforcement official with jurisdiction and 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, to order a previously designated telephone corporation security employee to arrange to cut, reroute, or divert telephone lines for the purpose of preventing telephone communication by such suspected person with any person other than a peace officer or a person authorized by the peace officer. (Public Utilities Code (PUC) § 7907.)
- Prohibits a governmental entity or provider of communications service, acting at the request of a governmental entity, to 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 obtained prior to the interruption. (PUC § 7908.)
- Authorizes a governmental entity that reasonably determines that an extreme emergency situation exists that involves immediate danger of death or great bodily injury and there is insufficient time, with due diligence, to first obtain a court order, to interrupt communications service without first obtaining a court order, as specified. (PUC § 7908.)
- Requires an order to interrupt communications service, or a specified signed statement of intent, that falls within the federal Emergency Wireless Protocol (EWP) to be served on the California Governorâs Office of Emergency Services (Cal OES). All other orders to interrupt communications service or statements of intent shall be served on the communications service providerâs contact for receiving requests from law enforcement, including receipt of and responding to state or federal warrants, orders, or subpoenas. (PUC § 7908)
This bill takes the existing provisions in the PUC and moves them to the Penal Code with a few substantive changes including: providing for a post-interruption judicial review in cases in which the government entity terminates service without prior warning; clarifying references; clarifies the procedure for applying for the court order; and, adding additional exceptions for interruptions.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
California Law Revision Commission (source)
OPPOSITION: (Verified 8/23/17)
None received
ASSEMBLY FLOOR: 77-0, 5/30/17
AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bocanegra, Bonta, Brough, Burke, Caballero, Calderon, Cervantes, ChĂĄvez, Chen, Chiu, Chu, Cooley, Cooper, Cunningham, Dababneh, Dahle, Daly, Flora, Fong, Frazier, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gomez, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, LimĂłn, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Ridley-Thomas, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon
NO VOTE RECORDED: Chau, Choi, Eggman
8/23/17 13:39:14
**** END ****
Senator Hannah-Beth Jackson, Chair
2017-2018 Regular Session
Bill No: AB 1034 (Author:Chau)
Version: July 5, 2017
Hearing Date: July 11, 2017
Fiscal: Yes
Urgency: No
Consultant: MEC
SUBJECT
Government interruption of communications
DESCRIPTION
This bill would implement recommendations by the California Law Revision Commission to repeal the Public Utilities Code provisions regarding government interruption of a communication service under certain emergency circumstances and place them in the Penal Code with some modifications.
BACKGROUND
In response to events surrounding Bay Area Rapid Transit actions, which raised First Amendment issues as to when, and under what circumstances, governmental entities may seek to interrupt a communication service, the Legislature passed SB 380 (Padilla, Ch. 371, Stats. 2013).[1] SB 380 sought to balance First Amendment concerns with public safety concerns regarding the interruption of a communication service. SB 380 specified that a governmental entity must first obtain a court order in order to interrupt communication unless there is an extreme emergency situation. The Legislature also directed the California Law Revision Commission (CLRC) to study the extent to which government can lawfully interrupt communication services and to recommend any needed reforms to SB 380. (SCR 54 (Padilla, Ch. 115, Stats. 2013).)
This bill would codify the reforms the CLRC recommends should be made to SB 380. According to the CLRC, the governmentâs interruption of communications âcan be constitutional in some circumstances, if government acts pursuant to procedures that are properly designed to protect free expression and due process rights. While existing statutory procedures are mostly sufficient to ensure the constitutionality of government action to interrupt communications there is room for improvement.â (California Law Revision Commission, Government Interruption of Communication Service, Dec. 2016.) Accordingly, this bill would implement recommendations by the CLRC to repeal the Public Utilities Code provisions regarding government interruption of a communication service and place them in the Penal Code with some modifications, including that a person whose communication service has been interrupted may petition the superior court to contest the grounds for the interruption and restore the interrupted service.
This bill was heard in the Senate Energy, Utilities and Communications Committee and passed with a 9 to 0 vote. This bill was also heard in the Senate Public Safety Committee and passed with a 7 to 0 vote.
CHANGES TO EXISTING LAW
Existing law establishes the California Law Revision Commission (CLRC) and authorizes the CLRC to study topics approved for study by a concurrent resolution of the Legislature. (Gov. Code Secs. 8280, 8293.)
Existing law provides that whenever the supervising law enforcement official having jurisdiction 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, such official may order a previously designated telephone corporation security employee to arrange to cut, reroute, or divert telephone lines for the purpose of preventing telephone communication by such suspected person with any person other than a peace officer or a person authorized by the peace officer. (Pub. Util. Code Sec. 7907.)
Existing law provides that unless authorized pursuant to extreme emergency situations, as specified, 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 obtained prior to the interruption. The order shall include all of the following findings:
- 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;
- that absent immediate and summary action to interrupt communications service, serious, direct, and immediate danger to public safety, health, or welfare will result; and
- 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 a violation of any other rights under federal or state law. (Pub. Util. Code Sec. 7908(b)(1).)
Existing law provides that the judicial order to interrupt communication service 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. (Pub. Util. Code Sec. 7908(b)(2).)
Existing law provides that the judicial order shall authorize an interruption of communications 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. (Pub. Util. Code Sec. 7908(b)(3).)
Existing law provides that communications service shall not be interrupted without first obtaining a court order except pursuant to the requirements related to extreme emergency situations. (Pub. Util. Code Sec. 7908(c)(1).)
Existing law provides that if a governmental entity reasonably determines that an extreme emergency situation exists that involves immediate danger of death or great bodily injury and there is insufficient time, with due diligence, to first obtain a court order, then the governmental entity may interrupt communications service without first obtaining a court order, provided that the interruption otherwise meets the grounds for issuance of a court order (under Pub. Util. Code Sec. 7908(b)) and that the governmental entity does all of the following:
- applies for a court order authorizing the interruption of communications service without delay, but within six hours after commencement of an interruption of communications service, except if it is not possible to apply for a court order within six hours due to an emergency, the governmental entity shall apply for a court order at the first reasonably available opportunity, but in no event later than 24 hours after commencement of an interruption of communications service, and if an application is filed more than six hours after commencement of an interruption of communications service pursuant to this clause, the application shall include a declaration under penalty of perjury stating the reason or reasons that the application was not submitted within six hours after commencement of the interruption of communications service;
- provides to the provider of communications service involved in the service interruption a statement of intent, as specified, to apply for a court order signed by an authorized official of the governmental entity, but if the governmental entity does not apply for a court order within 6 hours due to the emergency, then the governmental entity shall submit a copy of the signed statement of intent to the court within 6 hours; and
- provides 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 service without first obtaining a court order justify not providing the notice. (Pub. Util. Code Sec. 7908(c)(2).)
Existing law provides that an order to interrupt communications service, or a signed statement of intent provided pursuant to the extreme emergency situation protocol of Public Utilities Code Section 7908(c) 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 providerâs contact for receiving requests from law enforcement, including receipt of and responding to state or federal warrants, orders, or subpoenas. (Pub. Util. Code Sec. 7908(d).)
Existing law provides that a provider of communications service that intentionally interrupts communications service pursuant to this section 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. (Pub. Util. Code Sec. 7908(e).)
Existing law provides that good faith reliance by a communications service provider upon an order of a judicial officer authorizing the interruption of communications service pursuant to Public Utilities Code Section 7908(b), or upon a signed statement of intent to apply for a court order pursuant to Public Utilities Code Section 7908(c), 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. (Pub. Util. Code Sec. 7908(f).)
Existing law sunsets, on January 1, 2020, the statute relating to the governmentâs authority to interrupt communication services. (Public Utilities Code Sec. 7908(h).)Â
This bill would repeal the Public Utilities Code provisions regarding government interruption of a communication service and would instead place them in the Penal Code with some modifications, as recommended by the California Law Revision Commission (CLRC).
This bill would codify the CLRCâs recommendation that a person whose communication service has been interrupted pursuant to this article may petition the superior court to contest the grounds for the interruption and restore the interrupted service. Additionally, the bill would provide that this remedy is not exclusive and that other laws may provide a remedy for a person who is aggrieved by an interruption of a communication service authorized by this chapter.
This bill would codify the CLRCâs recommendation to specify the procedures for the application for the judicial order, the procedures for the issuance of the judicial order, and the requirements of the content of the judicial order.
This bill would codify the CLRCâs recommendation that these provisions regarding interruption of a communication service also do not apply to:
- the interruption of a communication service with the consent of the affected customer;
- the interruption of a communication service to prevent unauthorized wireless communication by a prisoner in a state or local correctional facility, including a juvenile facility;
- the interruption of a communication service to transmit an emergency notice that includes, but is not limited to, an Amber Alert, a message transmitted through the federal Emergency Alert System, or a message transmitted through the federal Wireless Emergency Alert System; or
- an interruption of communication service that results from the execution of a search warrant.
This bill would codify the CLRCâs recommendation to remove the sunset date.
COMMENT
1. Stated need for the bill
According to the author:
AB 1034 would implement a number of reforms recommended by the CLRC to address problems they identified with the government interruption of communication services process. First, the bill extends the sunset on Section 7908. Second, to protect a customerâs due process rights, it would establish an opportunity for post-interruption judicial review. Third it would replace the existing reference to an interruption that âfalls within the federal Emergency Wireless Protocolâ with a reference to an interruption of âcommunication service for all customers of the interrupted communications service within a geographical areaâ in order to minimize confusion about the role of the Office of Emergency Services in this process. Fourth, AB 1034 would add exceptions to the court authorization requirement, to minimize unnecessary burdens on law enforcement and the courts, for the following kinds of interruptions: 1) An interruption made with the consent of the affected customer; 2) An interruption that results from an Amber Alert or other emergency broadcasting system; 3) The interruption of wireless communications of prisoners in correctional facilities; and 4) An interruption of communication that results from the execution of a search warrant. Finally, the bill would borrow procedural language from the wiretap law to provide detail and procedural clarity on how to apply for a court order authorizing an interruption of communication service.
2. Implements recommendations of the California Law Revision Commission
The California Law Revision Commission determined that government action to interrupt communications âcan be constitutional in some circumstances, if government acts pursuant to procedures that are properly designed to protect free expression and due process rights. While existing statutory procedures are mostly sufficient to ensure the constitutionality of government action to interrupt communications, there is room for improvement.â (California Law Revision Commission, Government Interruption of Communication Service, Dec. 2016.)
Accordingly, the CLRC recommended some reforms to improve existing law. This bill would codify those reforms, including repealing the Public Utilities Code provisions regarding government interruption of a communication service and placing them in the Penal Code with some modifications. The suggested substantive modifications that would be codified in this bill are:
- allowing a person whose communication service has been interrupted to petition the superior court to contest the grounds for the interruption and restore the interrupted service;
- clarifying the procedure for applying for a court order, as specified;
- removing the sunset date;
- specifying that the provisions regarding interruption of a communication service do not apply to: the interruption of a communication service with the consent of the affected customer; the interruption of a communication service to prevent unauthorized wireless communication by a prisoner in a state or local correctional facility, including a juvenile facility; the interruption of a communication service to transmit an emergency notice that includes, but is not limited to, an Amber Alert, a message transmitted through the federal Emergency Alert System, or a message transmitted through the federal Wireless Emergency Alert System; or an interruption of communication service that results from the execution of a search warrant.
a. Judicial review
In 1979, the California Supreme Court explained that a specific interruption of communication service, without prior notice to the affected customer, does not violate constitutional free expression or due process rights if certain requirements are met. (Goldin v. Public Utilities Commission, 23 Cal. 3d 638 (1979).) The Goldin court held 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 significant dangers to the public health, safety, and welfare. The Goldin court also specified that a customer must be provided a prompt opportunity for review of the governmentâs allegations and, if they are not borne out, restoration of the interrupted service. Id. at 664-65. Current law includes all of the above requirements except the judicial review component. For this reason, the CLRC recommends adding judicial review to the statute regarding interruption of communication service.
The CLRC writes:
While it is possible that a person aggrieved by an interruption of communication service under Section 7908 could obtain judicial review under other law, it would be best if Section 7908 were to include all of the procedures required to ensure that protection of customersâ constitutional rights. The Commission recommends that language providing for prompt judicial review be added to the law.
If such language is added to the law, the Commission recommends clarifying that the new procedure for judicial review is not intended to be an exclusive remedy. It is possible that a person aggrieved by an unlawful interruption of communications may have other remedies available (e.g., suit in tort). (California Law Revision Commission, Government Interruption of Communication Service, Dec. 2016, p. 22.)
To comply with constitutionally required due process and not run afoul of free expression, this bill would codify the CLRCâs recommendation that a person whose communication service has been interrupted pursuant to this article may petition the superior court to contest the grounds for the interruption and restore the interrupted service. The legislation would also provide that the new procedure for judicial review is not intended to be an exclusive remedy and that other laws may provide a remedy for a person who is aggrieved by an interruption of a communication service authorized by the chapter.
b. Procedures for petitioning the court for the interruption of communication services
PUC Section 7908 generally prohibits a government interruption of communications except pursuant to an order signed by a judicial officer obtained prior to the interruption. The CLRC notes, however, that Section 7908 âprovides no procedural guidance as to how a government entity would apply for such an order, what criteria the judicial officer is to apply in determining whether to issue the order, and what form the order should take.â âWhile courts are capable of filling in those gaps on an ad hoc basis,â the CLRC continues, âit would be better if the law provided clear guidance.â Accordingly, this bill would codify the CLRCâs recommendation to specify the procedures for the application for the court order, the procedures for the issuance of the court order, and the required content of the court order.
Application by government entity for a court order
This bill would provide that the application by a government entity for a court order authorizing the interruption of a communication service must be made in writing upon the personal oath or affirmation of the chief executive of the government entity or his or her designee, to the presiding judge of the superior court or a judicial officer designated by the presiding judge for that purpose.
This bill would require that each application for court order authorizing the interruption of a communication service shall clearly describe the specific communication service to be interrupted with sufficient detail as to customer, cell sector, central office, or geographical area affected and shall include all of the following information: the identity of the government entity making the application; a statement attesting to a review of the application and the circumstances in support of the application by the chief executive officer of the government entity making the application, or his or her designee, as specified; a statement that probable cause exists to believe that the communication service to be interrupted is being used or will be used for an unlawful purpose or to assist in a violation of the law that expressly identifies the unlawful purpose or violation of the law; a statement that immediate and summary action is needed to avoid serious, direct, and immediate danger to public health, safety, or welfare; a statement that the proposed interruption is narrowly tailored to the specific circumstances under which the order is made and would not interfere with more communication than is necessary to achieve the purposes of the order; a statement that the proposed interruption would leave open ample alternative means of communication; a full and complete statement of the facts and circumstances relied on by the government entity to justify a reasonable belief that the order should be issued, including the facts and circumstances that support the above statements the government entity is required to make in the application for court order; a statement that the government entity has considered the practical disadvantages of the proposed interruption, including any disruption of emergency communication service; and a description of the scope and duration of the proposed interruption.
This bill would provide that the judicial officer may require the applicant to furnish additional testimony or documentary evidence in support of an application for an order authorizing the interruption of a communication. This bill would provide that a judicial officer shall accept a facsimile copy of the signature of any person required to give a personal oath or affirmation as an original signature to the application.
Issuance of court order
This bill would maintain current law that provides that the judicial officer may enter an ex parte order, as requested or modified, authorizing interruption of a communication service in the territorial jurisdiction in which the judicial officer is sitting, if the judicial officer determines, on the basis of the facts submitted by the applicant, that all of the following requirements are satisfied: there is probable cause that the communication service is being or will be used for an unlawful purpose or to assist in a violation of the law; absent immediate and summary action to interrupt the communication service, serious, direct, and immediate danger to public health, safety, or welfare will result; the interruption of communication 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 a violation of any other rights under federal or state law; and the interruption of a communication service would leave open ample alternative means of communication.
Content of court order
This bill would require that an order authorizing an interruption of a communication service include all of the following: a statement of the courtâs required findings; a clear description of the communication service to be interrupted, with specific detail as to the affected service, service provider, and customer or geographical area; a statement of the period of time during which the interruption is authorized; and a requirement that the government entity immediately serve notice on the service provider when the interruption is to cease.
This bill would provide that the order may provide for a fixed duration or require that the government end the interruption when it determines that the interruption is no longer reasonably necessary because the danger that justified the interruption has abated. If the judicial officer finds that probable cause exists that a particular communication service is being used or will be used as part of a continuing criminal enterprise, the court may order the permanent termination of that service and require that the terminated service not be referred to another communication service.
Support: None Known
Opposition: None Known
HISTORY
Source: California Law Revision Commission
Related Pending Legislation: None Known
Prior Legislation:
SCR 54 (Padilla, Ch. 115, Stats. 2013) directed the California Law Revision Commission to study the extent to which government can lawfully interrupt communication services, and to recommend any needed reforms.
SB 380 (Padilla, Ch. 371, Stats. 2013) until January 1, 2020, requires a governmental entity to obtain an order, signed by a judicial officer, before communications services may be lawfully interrupted, except as specified.
Prior Vote:
Senate Energy, Utilities and Communications Committee (Ayes 9, Noes 0)
Senate Public Safety Committee (Ayes 7, Noes 0)
Assembly Floor (Ayes 77, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Judiciary Committee (Ayes 11, Noes 0)
Assembly Communications and Conveyance Committee (Ayes 13, Noes 0)
**************
(Cabanatuan, BART admits halting cell service to stop protests: Move to disrupt protestersâ plans blasted as violation of free speech (Aug. 12, 2011) SF Gate <http://www.sfgate.com/news/article/BART-admits-halting-cell-service-to-stop-protests-2335114.php> [as of July 8, 2017].) â
SENATE COMMITTEE ON ENERGY, UTILITIES AND COMMUNICATIONS
Senator Ben Hueso, Chair
2017 - 2018 Regular
Bill No: Hearing Date: 7/3/2017
Author: | |||
Version: | As Amended | ||
Urgency: | Fiscal: | ||
Consultant: | |||
SUBJECT:
DIGEST: This bill takes the existing sections of the Public Utilities Code that govern the ability of a government entity to interrupt communication services â under certain emergency circumstances â and modifies and places them in the Penal Code, as recommended by the California Law Revision Commission (CLRC).
ANALYSIS:
Existing law:
- Establishes the CLRC and authorizes it to study topics approved by the concurrent resolution of the Legislature. (Government Code §8280 et seq.)
- Authorizes the supervising law enforcement official having jurisdiction to order a previously designated telephone corporation security employee to arrange to cut, reroute, or divert telephone lines to prevent telephone service by the suspect whenever there is probable cause that a person is holding hostages and committing a crime or is barricaded and is resisting apprehension through the use or threatened use of force. (Public Utilities Code §7907)
- Prohibits, until January 1, 2020, a governmental entity and a provider of communications service 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 service for an illegal purpose, except pursuant to an order signed by a judicial officer, as specified. Allows the order to authorize interruption of communications service for an illegal purpose, except pursuant to an order to authorize an interruption of communications 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 service notice on the communications service provider to cease the interruption. Authorizes interruption of a communications service without first obtaining a court order under extreme emergency situations, as specified. (Public Utilities Code §7908)
This bill:
- Authorizes a government entity to interrupt a communication service to prevent the service from being used for an illegal purpose or to protect public health, safety, or welfare, in any of the following circumstances:
- The interruption is authorized by a court order, as specified; or
- The government entity reasonably determines that:
- The interruption is required to address an extreme emergency situation that involves immediate danger of death or great bodily injury;
- There is insufficient time, with due diligence, to first obtain a court order, as specified; and
- The interruption meets the grounds for issuance of a court order, as specified.
- The interruption is required to address an extreme emergency situation that involves immediate danger of death or great bodily injury;
- The interruption is authorized by a court order, as specified; or
- Authorizes a supervising law enforcement official with jurisdiction to require that a service provider interrupt a communication service that is available to a person if:
- The law enforcement official has probable cause to believe that the person is holding hostages and is committing a crime, or is barricaded and is resisting apprehension through the use or threatened use of force; and
- The purpose of the interruption is to prevent the person from communicating with anyone other than a peace officer or a person authorized by a peace officer.
- The law enforcement official has probable cause to believe that the person is holding hostages and is committing a crime, or is barricaded and is resisting apprehension through the use or threatened use of force; and
- Requires an application by a government entity for a court order authorizing the interruption of a communication service to be made in writing, as specified, to the presiding judge of the superior court or a judicial officer designated by the presiding judge for that purpose. Requires each application to include all of the following information:
- The identity of the government entity making the application;
- A statement attesting to a review of the application and the circumstances in support of the application by the chief executive officer of the government entity making the application, or his or her designee. Requires the statement to state the name and office of the person who effected this review;
- A full and complete statement of the facts and circumstances relied on by the government entity to justify a reasonable belief that the order should be issued, including the facts and circumstances that support the statements made, as specified;
- A statement that probable cause exists to believe that the communication service to be interrupted is being used or will be used for an unlawful purpose or to assist in a violation of the law. Requires the statement to expressly identify the unlawful purpose or violation of the law;
- A statement that immediate and summary action is needed to avoid serious, direct, and immediate danger to public health, safety, or welfare;
- A statement that the proposed interruption is narrowly tailored to the specific circumstances under which the order is made and would not interfere with more communication than is necessary to achieve the purposes of the order;
- A statement that the proposed interruption would leave open ample alternative means of communication;
- A statement that the government entity has considered the practical disadvantages of the proposed interruption, including any disruption of emergency communication service; and
- A description of the scope and duration of the proposed interruption. The application shall clearly describe the specific communication service to be interrupted with sufficient detail as to customer, cell sector, central office, or geographical area affected.
- The identity of the government entity making the application;
- Authorizes a judicial officer to enter an ex parte order, as requested or modified, authorizing interruption of a communication service in the territorial jurisdiction in which the judicial officer is sitting, if the judicial officer determines, on the basis of the facts submitted by the applicant, that all of the following requirements are satisfied:
- There is probable cause that the communication service is being or will be used for an unlawful purpose or to assist in a violation of the law;
- Absent immediate and summary action to interrupt the communication service, serious, direct, and immediate danger to public health, safety, or welfare will result;
- The interruption of communication service is narrowly tailored to prevent unlawful infringement of speech that is protected, as specified; and
- The interruption of a communication service would leave open ample alternative means of communication.
- There is probable cause that the communication service is being or will be used for an unlawful purpose or to assist in a violation of the law;
- Requires an order authorizing an interruption of a communication service to include all of the following:
- A statement of the courtâs findings, as specified;
- A clear description of the communication service to be interrupted, with specific detail as to the affected service, service provider, and customer or geographical area;
- A statement of the period of time during which the interception is authorized, as specified; and
- A requirement that the government entity immediately serve notice on the service provider when the interruption is to cease.
- A statement of the courtâs findings, as specified;
- Requires a government entity that interrupts a specified communication service to take all of the following steps:
- Apply for a court order without delay, as specified;
- Prepare a signed statement of intent to apply for a court order, as specified; and
- Provide conspicuous notice of the application for a court order on the government entityâs Internet Web site without delay, unless the circumstances that justify an interruption of a communication service without first obtaining a court order also justify not providing the notice.
- Apply for a court order without delay, as specified;
- Requires the government entity to serve the order or statement authorize the interruption of a communication service for all customers of the interrupted communication service within a geographical area to the Governorâs Office of Emergency Services.
- Requires the government entity to serve the specified order or statement on both of the following persons:
- The appropriate service providerâs contact for receiving requests from law enforcement, including receipt of state or federal warrants, orders, or subpoenas; and
- The affected customer, if the identity of the customer is known, as specified.
- The appropriate service providerâs contact for receiving requests from law enforcement, including receipt of state or federal warrants, orders, or subpoenas; and
- Specifies that a good faith reliance by a service provider on a specified court, signed statement of intent, or the instruction of a supervising law enforcement officer shall constitute a complete defense for the service provider against any action brought as a result of the interruption of a communication service authorized by that court order, statement of intent, or instruction.
- Requires a service provider to designate a security employee and an alternate security employee, to provide all required assistance to law enforcement officials to carry out the specified purposes.
- Requires a service provider that intentionally interrupts specified communication service to comply with any rule or notification requirement of the Public Utilities Commission or Federal Communications Commission, or both, and any other applicable provision or requirement of state or federal law.
- Authorizes a person whose communication service has been interrupted to petition the superior court to contest the grounds for the interruption and restore the interrupted service, as specified.
- Exempts the following actions from the specified processes to interrupt communication services:
- The interruption of a communication service with the consent of the affected customer;
- The interruption of a communication service pursuant to a customer service agreement, contract, or tariff;
- The interruption of a communication service to protect the security of the communication network or other computing resources of a government entity or service provider;
- The interruption of a communication service to prevent unauthorized wireless communication by a prisoner in a state or local correctional facility, including a juvenile facility;
- The interruption of a communication service to transmit an emergency notice, as specified;
- An interruption of a communication service pursuant to a statute that expressly authorizes an interruption of a communication service, as specified; and
- An interruption of communication that results from the execution of a search warrant.
- The interruption of a communication service with the consent of the affected customer;
Background
About the California Law Revision Commission.  The CLRC was created in 1953 as the permanent successor to the Code Commission and given responsibility for the continuing substantive review of California statutory and decisional law. The CLRC studies the law in order to discover defects and anachronisms and recommends legislation to make needed reforms. The CLRC assists the Legislature in keeping the law up to date and only studies topics that the Legislature has authorized.
Goldin v. PUC. In 1979, the California Supreme Court held in Goldin v. Public Utilities Commission, 23 Cal. 3d 638 (1979) that a government may constitutionally deprive a person of telephone service without prior notice and an opportunity to be heard, so long as certain facts are found by a judge and certain procedures consistent with the requirements of due process were followed. These procedures including, obtaining a court order, having probable cause, finding that the absent of immediate interruption of the communication service could result in significant dangers to public health, safety, or welfare, and that the customer have a prompt post-interruption opportunity for judicial review of the governmentâs allegations. Most of these procedures were codified in the statutes via SB 380 (Padilla, Chapter 371, Statutes of 2013) which is Section 7908 of the Public Utilities Code, after a previous effort was vetoed by the governor, SB 1160 (Padilla, 2012).
About SCR 54 (2013). In 2014, Senate Concurrent Resolution 54 (Padilla, Chapter 115, Statutes of 2013) directed the CLRC to conduct a study on the constitutionality of statutes that govern the ability of government entities, and in particular, law enforcement, to interrupt communication service. SCR 54 suggested that such reconsideration was necessary in light of changing mobile and Internet-based technologies. The resolution asked the CLRC to recommend revisions to those statutes, if the study concluded that changes were necessary. AB 1034 would implement the CLRC recommendations which are summarized as follows:
- Eliminate the sunset date on the Public Utilities Code Section 7908 procedure.
- Repeal Sections 7907 and 7908 and modify and place within the Penal Code Section of the statutes.
- Provide for prompt post-interruption of judicial review of a government interruption of communication service. This was a requirement in Goldin v. PUC that was not codified in 7908.
- Clarify the relationship between Section 7908 and the federal Emergency Wireless Protocol in order to ensure it only affects an areawide interruption of communications service. These changes would provide clear guidance and avoid burdening the Governorâs Office of Emergency Services with review of routine law enforcement actions.
- Add clear exceptions for matters that need not be subject to 7908 procedures, including: (1) the interruption of prisoner wireless communication in correctional facilities; (2) an incidental interruption of communication that results from the execution of a search warrant; (3) an interruption with the consent of the affected person; and (4) emergency broadcast alerts since they are brief.
- Fill procedural gaps by borrowing relevant language from existing law on applying for a court order to authorize a wiretap.
Comments. The changes proposed in this bill are consistent with those recommended by the CLRC study. These changes also have little material effect on California Public Utilities Commission (CPUC) oversight of communications services functions as the language on page 8, line 9-14, states that a communications service provider must comply with CPUC rules.
Technical Amendments. There are a few drafting errors and need for clarifying language in the bill language, for example the use of the word âinterceptionâ on page 6, line 22, instead of the word âinterruption.âÂ
Triple Referral. This bill was approved by the Senate Committee on Public Safety on a 7-0 vote. Should this bill be approved by this committee, it will be re-referred to the Senate Committee on Judiciary for its consideration.
Prior/Related Legislation
SCR 54 (Padilla, Chapter 115, Statutes of 2013) required the CLRC to report to the Legislature recommendations to revise statutes governing access by state and local government agencies to customer information from communications service providers.
SB 380 (Padilla, Chapter 371, Statutes of 2013) required a governmental entity to obtain an order, signed by a judicial officer, before communications services may be lawfully interrupted.
SB 1160 (Padilla, 2012) would have prohibited 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 purposes except pursuant to a court order based on a finding of probably cause. The bill was vetoed by the Governor.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
SUPPORT:
None received
OPPOSITION:
None received
ARGUMENTS IN SUPPORT: According to the author:
AB 1034 would implement a number of reforms recommended by the CLRC to address problems they identified with the government interruption of communication services process.
-- END --
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Nancy Skinner, Chair
2017 - 2018 Regular
Bill No: AB 1034 Hearing Date: June 20, 2017
Author: | Chau | ||
Version: | May 17, 2017 | ||
Urgency: | No | Fiscal: | Yes |
Consultant: | MK | ||
Subject: Government Interruption of Communications
HISTORY
Source: California Law Revision Commission
Prior Legislation: SCR 54, Resolution Chapter 115, Stats. 2013
SB 380 (Padilla) Chapter 371, Stats. 2013
Support: Unknown
Opposition: None known
Assembly Floor Vote: 77 - 0
PURPOSE
This bill takes the existing sections of the public utility code that govern the ability of a government entity to interrupt communication services â under certain emergency circumstances â and modifies and places them in the Penal Code, as recommended by the California law revision commission.
Existing law establishes the CLRC and authorizes it to study topics approved by concurrent resolution of the Legislature. (Government Code §§ 8280 and 8293.)
Existing law authorizes a supervising law enforcement official with jurisdiction and 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, to order a previously designated telephone corporation security employee to arrange to cut, reroute, or divert telephone lines for the purpose of preventing telephone communication by such suspected person with any person other than a peace officer or a person authorized by the peace officer. (Public Utilities Code (PUC) § 7907.)
Existing law prohibits a governmental entity or provider of communications service, acting at the request of a governmental entity, to 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 obtained prior to the interruption. (PUC § 7908.)
Existing law authorizes a governmental entity that reasonably determines that an extreme emergency situation exists that involves immediate danger of death or great bodily injury and there is insufficient time, with due diligence, to first obtain a court order, to interrupt communications service without first obtaining a court order, as specified. (PUC § 7908.)
Existing law requires an order to interrupt communications service, or a specified signed statement of intent, that falls within the federal Emergency Wireless Protocol (EWP) to be served on the California Governorâs Office of Emergency Services (Cal OES). All other orders to interrupt communications service or statements of intent shall be served on the communications service providerâs contact for receiving requests from law enforcement, including receipt of and responding to state or federal warrants, orders, or subpoenas. (PUC § 7908)
This bill takes the existing provisions in the PUC and moves them to the Penal Code with a few substantive changes including: providing for a post-interruption judicial review in cases in which the government entity terminates service without prior warning; clarifying references; clarifies the procedure for applying for the court order; and, adding additional exceptions for interruptions.
COMMENTS
1. Need for This Bill
According to the author:
Existing Public Utilities Code Section 7908 provides a procedure for the authorization of government action to interrupt communication service. That procedure is designed to ensure that any such interruption will be consistent with constitutional due process and free expression rights.
The California Law Revision Commission (CLRC) was directed to study that provision, to determine whether it is adequate to protect constitutional rights and to recommend any needed reforms.
CLRC found that the statute was mostly sufficient to protect constitutional rights, but identified the following problems:
- Section 7908 will sunset on January 1, 2020. That would eliminate the main statutory guidance on how government may interrupt communication service without violating constitutional rights.
- The statute does not provide for post-interruption judicial review. This appears to violate due process rights. See Goldin v. Pub. Util. Commân, 23 Cal. 3d 638 (1979).
(c) The existing statute requires that an interruption that falls within the scope of the federal emergency wireless protocol (EWP) must be served on the âCalifornia Emergency Management Agencyâ (now the Governorâs Office of Emergency Services (OES)). That requirement is potentially confusing, because the federal EWP is a secret protocol, and its exact scope is not generally known. This could lead to confusion about the statuteâs requirements, when time may be of the essence.
- There are some situations that should be exempted from Section 7908, because they do not pose a threat to constitutional rights. The application of Section 7908 to those situations imposes an undue burden on law enforcement and the courts.
(e) Section 7908 does not provide clear procedural rules for how law enforcement must apply for a court order authorizing an interruption of communication service. This could lead to problematic confusion and delay.
2. Goldin v. Public Utilities Commission
In 1979, the California Supreme Court held in Goldin v. Public Utilities Commission, 23 Cal. 3d 638 (1979) that a government may constitutionally deprive a person of telephone service without prior notice and an opportunity to be heard, so long as certain facts are found by a judge and certain procedures consistent with the requirements of due process were followed. These procedures including, obtaining a court order, having probable cause, finding that the absent of immediate interruption of the communication service could result in significant dangers to public health, safety, or welfare, and that the customer have a prompt post-interruption opportunity for judicial review of the governments allegations.
SB 380 (Padilla) Chapter 371, Statutes of 2013 largely codified Goldin v. Public Utilities Commission under Public Utilities Code (PUC) Section 7908 by establishing a process by which state and local government may interrupt a communication service. However, the provisions in PUC § 7908 are set to sunset in 2020. This bill removes that sunset. In addition, this bill moves the provisions in PUC § 7908 over to a new Penal Code Section.
Although PUC § 7908 prohibits a government interruption of communications unless the government entity obtains a court order signed by a judicial officer prior to the interruption, it does not specify any procedural guidance on how a government entity would apply for such an order, what criteria a judicial officers should consider in determining whether to issue such an order, and what form the order should take. This bill would create such a procedure that is consistent with existing laws on applying for court orders authorizing wiretaps.
3. Post-Interruption Judicial Review and Notice
As part of the process established under Goldin v. Public Utilities Commission, the California Supreme Court made clear that an affected customer must be given a prompt post-interruption opportunity to review the governmentâs allegations for justifying the interruption of communications service and, if not borne out, the interrupted service should be restored. While it is possible for a person to obtain judicial review under other laws, PUC § 7908 does not specifically provide post-interruption judicial review for customers to challenge the governmentâs allegations. In addition, PUC § 7908 does not require notice to be served upon affected customers. While in certain situations, serving a notice might not be feasible, proving notice to a specifically-identified customer when their communication service is interrupted would greater protect the due process rights of customers and provide them avenues for challenge. This bill would provide a post-interruption judicial review and notice for customers.
-- END â
Date of Hearing: May 24, 2017
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez Fletcher, Chair
ABPCA Bill Id:AB 1034
Author:(Chau) â As Amended Ver:May 17, 2017
Policy Committee: | Communications and Conveyance | Vote: | 13 - 0 |
Judiciary | 11 - 0 | ||
|
|
Urgency: No State Mandated Local Program: Yes Reimbursable: No
SUMMARY:
This bill modifies and places existing sections of the public utility code that governs the ability of a government entity to interrupt communications services under emergency circumstances in the penal codes as recommended by the California Law Revision Commission.
FISCAL EFFECT:
Negligible fiscal impact.
COMMENTS:
Purpose. In 2014, Senate Concurrent Resolution 54 (Padilla) directed the California Law Revision Commission (CLRC) to conduct a study on the constitutionality of statutes that govern the ability of government entities, and in particular law enforcement, to interrupt communication service. SCR 54 suggested that such reconsideration was necessary in light of changing mobile and Internet-based technologies. The resolution asked the CLRC to recommend revisions to those statutes, if the study concluded that changes were necessary. This bill implements the CLRC recommendations.
Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081
Date of Hearing: April 18, 2017
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
ABPCA Bill Id:AB 1034
Author:(Chau) â As Introduced Ver:February 16, 2017
PROPOSED CONSENT
SUBJECT: Government interruption of communications
KEY ISSUE: SHould existing sections of the public utility code that govern the ability of a government entity to interrupt communication services â UNDER certain Emergency circumstances â be modified ANd placed in the penal code, as recommended by the CAlifornia Law revision Commission?
SYNOPSIS
In 2014, Senate Concurrent Resolution 54 (Padilla) directed the California Law Revision Commission (CLRC) to conduct a study on the constitutionality of statutes that govern the ability of government entities, and in particular law enforcement, to interrupt communication services, especially in light of changing mobile and Internet-based technologies. The constitutional issues primarily concerned First Amendment and due process rights. The resolution asked the CLRC to recommend revisions in those statutes, if the study concluded that any changes were necessary. This bill would implement the CLRC recommendations. While this bill continues, for the most part, the substance of existing law, it moves the relevant provisions from the Public Utilities Code (PUC) to the Penal Code. The bill also removes a sunset that would have repealed the PUC provisions as of January 1, 2020. While the language and requirements of this bill are nearly identical to existing law, there are a few substantive changes. First, existing PUC provisions were written to conform to the California Supreme Court's ruling in Goldin v Public Utilities Commission, which held that a government entity cannot interrupt communication services unless a court determines, and so orders, that it is necessary to prevent illegal activities or to prevent an immediate danger to public health and safety. Only under exceptional circumstances â such as certain hostage situations â may services be interrupted without a court order. While existing law mostly conforms to these requirements, Goldin also held that in those exceptional cases in which a government entity is authorized to terminate services without prior notice, due process requires that the affected customer be provided with a prompt opportunity for a post-interruption judicial review. Existing law does not provide for post-interruption judicial review; this measure, as recommended by CLRC, corrects that omission. In addition, the bill makes substantive but non-controversial changes that modify an inapt reference to the federal Emergency Wireless Protocol, clarify the procedures for applying a court order, and add exceptions for interruptions that do not implicate free speech. There is no known opposition to this bill. The bill recently passed out of the Assembly Committee on Conveyances and Communications on consent.
SUMMARY: Implements recommendations by the California Law Revision Commission (CLRC) related to government interruption of communication service statutes. Specifically, this bill:
- Prohibits a government entity, or a communication provider acting at the request of a government entity, from interrupting a communication service in order to prevent the service from being used for an illegal purpose or in order to protect public health, safety, or welfare, except as provided by the provisions of this bill.
- Authorizes a government entity to interrupt a communication service to prevent the service from being used for an illegal purpose or to protect public health, safety, or welfare, in any of the following circumstances:
- The interruption is authorized by a court order, as specified.
- The government entity reasonably determines that the interruption is required to address an extreme emergency situation that involves immediate danger of death or great bodily injury, and that there is insufficient time to obtain a court order; and the interruption otherwise meets the grounds for issuing a court order.
- A supervising law enforcement official has probable cause to believe that the person is holding hostages and is committing a crime, or is barricaded and is resisting apprehension through the use or threatened use of force; and, the purpose of the interruption is to prevent the person from communicating with anyone other than law enforcement.
- Requires an application by a government entity for a court order authorizing the interruption of a communication service to be made in writing to the presiding judge of the superior court or to a designated judicial officer, as specified. Requires each application to include specified statements attesting to the circumstances that support the application.
- Authorizes a judicial officer, upon application, to enter an ex parte order authorizing interruption of a communication service if the judicial officer determines, on the basis of the facts submitted by the applicant, that all of the following requirements are satisfied:
- There is probable cause that the communication service is being or will be used for an unlawful purpose or to assist in a violation of the law;
- Absent immediate and summary action to interrupt the communication service, serious, direct, and immediate danger to public health, safety, or welfare will result;
- The interruption of communication service is narrowly tailored to prevent unlawful infringement of speech that is protected, as specified; and,
- The interruption of a communication service would leave open ample alternative means of communication.
- Requires an order authorizing an interruption of communication service to include certain statements, including a state of the courts findings; a clear description of the service to be interrupted; and a statement of the time period during which the interruption is authorized. Specifies that the government must serve notice on the service provider when the interruption is to cease.
- Requires that when a government entity interrupts service without an order (as authorized in 2b) above), it shall apply for a court order without delay, if possible within six hours after commencing the interruption, or submit a signed statement of intent to apply for a court order, as specified.
- Specifies that if the interruption of service will affect service of all customers within a geographical area, the government shall serve the order or statement of intent on the Governor's Office of Emergency Services.
- Specifies that a service provider's good faith reliance on a court order or statement of intent, or the instruction of a supervising law enforcement officer, shall constitute a complete defense for the service provider against any action brought as a result of the interruption of a communication service.
- Requires a service provider that intentionally interrupts specified communication service to comply with any rule or notification requirement of the Public Utilities Commission or Federal Communications Commission, or both, and any other applicable provision or requirement of state or federal law.
- Authorizes a person whose communication service has been interrupted to petition the superior court to contest the grounds for the interruption and restore the interrupted service, as specified.
EXISTING LAW:
- Establishes the California Law Revision Commission (CLRC) and authorizes it to study topics approved by concurrent resolution of the Legislature. (Government Code Sections 8280 and 8293.)
- Authorizes a supervising law enforcement official that 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, to order a designated telephone corporation employee to cut, reroute, or divert telephone lines for the purpose of preventing telephone communication by the suspected person with anyone other than law enforcement. (Public Utilities Code Section 7907.)
- Prohibits a government entity, or a provider of communication service acting at the request of a government entity, from interrupting communication service for the purpose of protecting public safety or preventing the use of communication service for an illegal purpose, except pursuant to an order signed by a judicial officer obtained prior to the interruption. Requires the court order to include all of the following findings:
- 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.
- That absent immediate and summary action to interrupt communication service, serious, direct, and immediate danger to public safety, health, or welfare will result.
- That the interruption of communication 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 a violation of any other rights under federal or state law. (Public Utilities Code Section 7908 (b).)
- Permits a government entity to interrupt communication service without a court order if it reasonably determines that there is an extreme emergency involving immediate danger of death or great bodily injury and there is insufficient time to first obtain a court order, provided that the government entity does all of the following:
- Applies for a court order authorizing the interruption of communication service without delay, but within six hours after commencement of an interruption of communication service.
- Provides to the provider of communication service a statement of intent to apply for a court order signed by an authorized official of the government entity.
- Provides 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 service without first obtaining a court order justify not providing the notice. (Public Utilities Code Section 7908 (c).)
- Provides that an order to interrupt communication service or a signed statement of intent 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 providerâs contact for receiving requests from law enforcement, including receipt of and responding to state or federal warrants, orders, or subpoenas. (Public Utilities Code Section 7908 (d).)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: In 2014, Senate Concurrent Resolution 54 (Padilla) directed the California Law Revision Commission (CLRC) to conduct a study on the constitutionality of statutes that govern the ability of government entities, and in particular law enforcement, to interrupt communication service. SCR 54 suggested that such reconsideration was necessary in light of changing mobile and Internet-based technologies. The resolution asked the CLRC to recommend revisions to those statutes, if the study concluded that changes were necessary. This bill would implement the CLRC recommendations.
This bill continues, for the most part, the substance of existing law. However, it moves the relevant statutes â namely Sections 7907 and 7908 from the Public Utilities Code (PUC) â into the Penal Code. According to CLRC, placement in the PUC would make sense if those sections required the Public Utilities Commission to do something, but they do not. Therefore, CLRC recommended placing the provisions in the Penal Code, with other provisions that address the ability of government entities to obtain court orders for specified law enforcement and public safety purposes.
While the language and requirements of this bill are nearly identical to existing law, there are a few substantive changes. First, and most important, the existing PUC provisions were written to conform to a California Supreme Court decision, Goldin v. Public Utilities Commission (1979) 23 Cal. 3d 638, which held that a government entity could not interrupt communication service, unless a court first determines that it is necessary to prevent illegal activities or to prevent an immediate danger to public health and safety. Only under exceptional circumstances â such as certain hostage situations â could service be interrupted without a court order. (Ibid.) SB 380 (Chapter 371, Statutes of 2013) added Section 7908 to the Public Utilities Code in order to codify the requirements of the Goldin holding. For the most part, Section 7908 complies with the constitutional requirements set forth in Goldin, except in one way. Goldin held that in cases in which a government entity terminates services without prior notice, due process requires that the customer whose service is interrupted must be afforded a prompt opportunity for post-interruption judicial review. Existing law does not provide for such a review. This measure, as recommended by CLRC, corrects that omission.
In addition, the bill makes other substantive, but relatively non-controversial, changes. Specifically, it corrects an inapt reference to the federal Emergency Wireless Protocol; clarifies the procedures for making an application for a court order by modeling existing procedures for obtaining a wiretap order; and adds exceptions for interruptions that do not implicate free speech, including interruptions of a prisoner's wireless communication in a correctional facility, interruptions that occur as a result of a search warrant, interruptions that a occur as a result of an emergency broadcast, and interruptions made with the customer's consent. According to the author:
Existing Public Utilities Code Section 7908 provides a procedure for the authorization of government action to interrupt communication service. That procedure is designed to ensure that any such interruption will be consistent with constitutional due process and free expression rights. The California Law Revision Commission (CLRC) was directed to study that provision, to determine whether it is adequate to protect constitutional rights and to recommend any needed reforms. CLRC found that the statute was mostly sufficient to protect constitutional rights, but identified the following problems:
(a) Section 7908 will sunset on January 1, 2020. That would eliminate the main statutory guidance on how government may interrupt communication service without violating constitutional rights.
(b) The statute does not provide for post-interruption judicial review. This appears to violate due process rights. See Goldin v. Pub. Util. Commân, 23 Cal. 3d 638 (1979).
(c) The existing statute requires that an interruption that falls within the scope of the federal emergency wireless protocol (EWP) must be served on the âCalifornia Emergency Management Agencyâ (now the Governorâs Office of Emergency Services (OES)). That requirement is potentially confusing, because the federal EWP is a secret protocol, and its exact scope is not generally known. This could lead to confusion about the statuteâs requirements, when time may be of the essence.
(d) There are some situations that should be exempted from Section 7908, because they do not pose a threat to constitutional rights. The application of Section 7908 to those situations imposes an undue burden on law enforcement and the courts.
(e) Section 7908 does not provide clear procedural rules for how law enforcement must apply for a court order authorizing an interruption of communication service. This could lead to problematic confusion and delay.
REGISTERED SUPPORT / OPPOSITION:
Support
None on file
Opposition
None on file
Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334
Date of Hearing: April 5, 2017
ASSEMBLY COMMITTEE ON COMMUNICATIONS AND CONVEYANCE
Miguel Santiago, Chair
ABPCA Bill Id:AB 1034 (
Author:Chau) â As Introduced Ver:February 16, 2017
SUBJECT: Government interruption of communications
SUMMARY: Implements various recommendations by the California Law Revision Commission (CLRC) related to government interruption of communication service statutes. Specifically, this bill:
- Authorizes a government entity to interrupt a communication service to prevent the service from being used for an illegal purpose or to protect public health, safety, or welfare, in any of the following circumstances:
- The interruption is authorized by a court order, as specified; or,
- The government entity reasonably determines that:
- The interruption is required to address an extreme emergency situation that involves immediate danger of death or great bodily injury;
- There is insufficient time, with due diligence, to first obtain a court order, as specified; and,
- The interruption meets the grounds for issuance of a court order, as specified.
- The interruption is required to address an extreme emergency situation that involves immediate danger of death or great bodily injury;
- The interruption is authorized by a court order, as specified; or,
- Authorizes a supervising law enforcement official with jurisdiction to require that a service provider interrupt a communication service that is available to a person if:
- The law enforcement official has probable cause to believe that the person is holding hostages and is committing a crime, or is barricaded and is resisting apprehension through the use or threatened use of force; and,
- The purpose of the interruption is to prevent the person from communicating with anyone other than a peace officer or a person authorized by a peace officer.
- The law enforcement official has probable cause to believe that the person is holding hostages and is committing a crime, or is barricaded and is resisting apprehension through the use or threatened use of force; and,
- Requires an application by a government entity for a court order authorizing the interruption of a communication service to be made in writing, as specified, to the presiding judge of the superior court or a judicial officer designated by the presiding judge for that purpose. Requires each application to include all of the following information:
- The identity of the government entity making the application;
- A statement attesting to a review of the application and the circumstances in support of the application by the chief executive officer of the government entity making the application, or his or her designee. Requires the statement to state the name and office of the person who effected this review;
- A full and complete statement of the facts and circumstances relied on by the government entity to justify a reasonable belief that the order should be issued, including the facts and circumstances that support the statements made, as specified;
- A statement that probable cause exists to believe that the communication service to be interrupted is being used or will be used for an unlawful purpose or to assist in a violation of the law. Requires the statement to expressly identify the unlawful purpose or violation of the law;
- A statement that immediate and summary action is needed to avoid serious, direct, and immediate danger to public health, safety, or welfare;
- A statement that the proposed interruption is narrowly tailored to the specific circumstances under which the order is made and would not interfere with more communication than is necessary to achieve the purposes of the order;
- A statement that the proposed interruption would leave open ample alternative means of communication;
- A statement that the government entity has considered the practical disadvantages of the proposed interruption, including any disruption of emergency communication service; and,
- A description of the scope and duration of the proposed interruption. The application shall clearly describe the specific communication service to be interrupted with sufficient detail as to customer, cell sector, central office, or geographical area affected.
- The identity of the government entity making the application;
- Authorizes a judicial officer to enter an ex parte order, as requested or modified, authorizing interruption of a communication service in the territorial jurisdiction in which the judicial officer is sitting, if the judicial officer determines, on the basis of the facts submitted by the applicant, that all of the following requirements are satisfied:
- There is probable cause that the communication service is being or will be used for an unlawful purpose or to assist in a violation of the law;
- Absent immediate and summary action to interrupt the communication service, serious, direct, and immediate danger to public health, safety, or welfare will result;
- The interruption of communication service is narrowly tailored to prevent unlawful infringement of speech that is protected, as specified; and,
- The interruption of a communication service would leave open ample alternative means of communication.
- There is probable cause that the communication service is being or will be used for an unlawful purpose or to assist in a violation of the law;
- Requires an order authorizing an interruption of a communication service to include all of the following:
- A statement of the courtâs findings, as specified;
- A clear description of the communication service to be interrupted, with specific detail as to the affected service, service provider, and customer or geographical area;
- A statement of the period of time during which the interception is authorized, as specified; and,
- A requirement that the government entity immediately serve notice on the service provider when the interruption is to cease.
- A statement of the courtâs findings, as specified;
- Requires a government entity that interrupts a specified communication service to take all of the following steps:
- Apply for a court order without delay, as specified;
- Prepare a signed statement of intent to apply for a court order, as specified; and,
- Provide conspicuous notice of the application for a court order on the government entityâs Internet Web site without delay, unless the circumstances that justify an interruption of a communication service without first obtaining a court order also justify not providing the notice.
- Apply for a court order without delay, as specified;
- Requires the government entity to serve the order or statement authorize the interruption of a communication service for all customers of the interrupted communication service within a geographical area to the Governorâs Office of Emergency Services.
- Requires the government entity to serve the specified order or statement on both of the following persons:
- The appropriate service providerâs contact for receiving requests from law enforcement, including receipt of state or federal warrants, orders, or subpoenas; and,
- The affected customer, if the identity of the customer is known, as specified.
- The appropriate service providerâs contact for receiving requests from law enforcement, including receipt of state or federal warrants, orders, or subpoenas; and,
- Specifies that a good faith reliance by a service provider on a specified court, signed statement of intent, or the instruction of a supervising law enforcement officer shall constitute a complete defense for the service provider against any action brought as a result of the interruption of a communication service authorized by that court order, statement of intent, or instruction.
- Requires a service provider to designate a security employee and an alternate security employee, to provide all required assistance to law enforcement officials to carry out the specified purposes.
- Requires a service provider that intentionally interrupts specified communication service to comply with any rule or notification requirement of the Public Utilities Commission or Federal Communications Commission, or both, and any other applicable provision or requirement of state or federal law.
- Authorizes a person whose communication service has been interrupted to petition the superior court to contest the grounds for the interruption and restore the interrupted service, as specified.
- Exempts the following actions from the specified processes to interrupt communication services:
- The interruption of a communication service with the consent of the affected customer;
- The interruption of a communication service pursuant to a customer service agreement, contract, or tariff;
- The interruption of a communication service to protect the security of the communication network or other computing resources of a government entity or service provider;
- The interruption of a communication service to prevent unauthorized wireless communication by a prisoner in a state or local correctional facility, including a juvenile facility;
- The interruption of a communication service to transmit an emergency notice, as specified;
- An interruption of a communication service pursuant to a statute that expressly authorizes an interruption of a communication service, as specified; and,
- An interruption of communication that results from the execution of a search warrant.
- The interruption of a communication service with the consent of the affected customer;
EXISTING LAW:
- Establishes the CLRC and authorizes it to study topics approved by concurrent resolution of the Legislature. (Government Code Section 8280 and 8293)
- Authorizes a supervising law enforcement official with jurisdiction and 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, to order a previously designated telephone corporation security employee to arrange to cut, reroute, or divert telephone lines for the purpose of preventing telephone communication by such suspected person with any person other than a peace officer or a person authorized by the peace officer. (Public Utilities Code (PUC) Section 7907)
- Prohibits a governmental entity or provider of communications service, acting at the request of a governmental entity, to 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 obtained prior to the interruption. (PUC Section 7908)
- Authorizes a governmental entity that reasonably determines that an extreme emergency situation exists that involves immediate danger of death or great bodily injury and there is insufficient time, with due diligence, to first obtain a court order, to interrupt communications service without first obtaining a court order, as specified. (PUC Section 7908)
- Requires an order to interrupt communications service, or a specified signed statement of intent, that falls within the federal Emergency Wireless Protocol (EWP) to be served on the California Governorâs Office of Emergency Services (Cal OES). All other orders to interrupt communications service or statements of intent shall be served on the communications service providerâs contact for receiving requests from law enforcement, including receipt of and responding to state or federal warrants, orders, or subpoenas. (PUC Section 7908)
FISCAL EFFECT: Unknown. This bill is keyed fiscal by the Legislative Counsel.
COMMENTS:
- Author Statement: âAB 1034 would implement a number of reforms recommended by the CLRC to address problems they identified with the government interruption of communications services process. First, the bill extends the sunset on [Public Utilities Code] Section 7908. Second, to protect a customerâs due process rights, it would establish an opportunity for post-interruption judicial review. Third, it would replace the existing reference to an interruption that âfalls within the federal Emergency Wireless Protocolâ with a reference to an interruption of âcommunication service for all customers of the interrupted communications service within a geographical areaâ in order to minimize confusion about the role of the Office of Emergency Services in this process. Fourth, AB 1034 would add exceptions to the court authorization requirements, to minimize unnecessary burdens on law enforcement and the courts, for [specified] interruptions. Finally, the bill would borrow procedural language from the wiretap law to provide details and procedural clarity on how to apply for a court order authorizing an interruption of communication service.â
- Background: The CLRC is an independent state agency created in 1953 to examine California law and recommend needed reforms to the Legislature and Governor. The CLRC is required to establish a report containing a calendar of topics that it wishes to study and to study any topic that the Legislature refers to it, through concurrent resolution or statute. As such, in 2013, the Legislature enacted SCR 54 (Padilla) Chapter 115, Statutes of 2013, which directed the CLRC to study the constitutionality of government interruption of communication service and propose reforms to improve procedures used to take such actions.
SCR 54 argued that revising and updating statutes related to the governance of state and local agency access to customer information from communications service providers is necessary to reflect modern technologies and clarify the rights and responsibilities of customers, communications service providers, and government agencies seeking to access customer information. Existing law includes an array of restrictions, authorizations, and exemptions, related to government interruption of communication services scattered across California Code. Providing greater coherence and consistency may very well provide state and local government agencies with a clearer framework and legal standard for when government can obtain customer information and from whom. The CLRC completed its study required under SCR 54 and provided their recommendations in December 2016.
- Goldin v. Public Utilities Commission: In 1979, the California Supreme Court held in Goldin v. Public Utilities Commission, 23 Cal. 3d 638 (1979) that a government may constitutionally deprive a person of telephone service without prior notice and an opportunity to be heard, so long as certain facts are found by a judge and certain procedures consistent with the requirements of due process were followed. These procedures including, obtaining a court order, having probable cause, finding that the absent of immediate interruption of the communication service could result in significant dangers to public health, safety, or welfare, and that the customer have a prompt post-interruption opportunity for judicial review of the governments allegations.
SB 380 (Padilla) Chapter 371, Statutes of 2013 largely codified Goldin v. Public Utilities Commission under Public Utilities Code Section 7908 by establishing a process by which state and local government may interrupt a communication service. However, the provisions in Section 7908 are set to sunset in 2020. This bill removes that sunset. In addition, this bill moves the provisions in Section 7908 over to a new Penal Code Section. Seeing that the process established under Section 7908 do not require any special action upon the California Public Utilities Commissions, moving the provisions from the Public Utilities Code to the Penal Code is consistent with the goals of consolidating statutes to relevant code sections related to government action to abate unlawful activities.
Furthermore, although Section 7908 prohibits a government interruption of communications unless the government entity obtains a court order signed by a judicial officer prior to the interruption, Section 7908 does not specified any procedural guidance on how a government entity would apply for such an order, what criteria a judicial officers should consider in determining whether to issue such an order, and what form the order should take. This bill would create such a procedure that is consistent with existing laws on applying for court orders authorizing wiretaps. Doing so would provide clearer guidance and help reduce procedural uncertainty or confusion in times of emergency.
- Post-Interruption Judicial Review and Notice: As part of the process established under Goldin v. Public Utilities Commission, the California Supreme Court made clear that an affected customer must be given a prompt post-interruption opportunity to review the governmentâs allegations for justifying the interruption of communications service and, if not borne out, the interrupted service should be restored. While it is possible for a person to obtain judicial review under other laws, Section 7908 does not specifically provide post-interruption judicial review for customers to challenge the governmentâs allegations. In addition, Section 7908 does not require notice to be served upon affected customers. While in certain situations, serving a notice might not be feasible, proving notice to a specifically-identified customer when their communication service is interrupted would greater protect the due process rights of customers and provide them avenues for challenge. This bill would provide a post-interruption judicial review and notice for customers.
- Cal OES Guidance: The EWP is a federal process established by the Department of Homeland Securityâs National Coordinating Center for Communications following the 2005 London terrorist bombings. The EWP establishes a process for interruption and restoring wireless communications service during times of national emergency. Current law requires an order to interrupt communications service, or a specified signed statement of intent, that falls within the EWP to be served on the Cal OES. However, details of the EWP, although not classified, are not widely disclosed and only shared with federal law enforcement officials, state homeland security officials, and national cellular carriers. This causes confusion and burdens Cal OES when reviewing routine law enforcement actions, when the intent of the EWP seems to apply only to interruption of communications over a large geographic area. This bill makes clarifying changes to provide more guidance to the OES in reviewing EWP and other law enforcement actions.
- Exceptions: Current law provides a number of narrow exceptions to following the court authorization process to interrupt communication services. These exceptions generally apply to interruptions of communication service for purpose of protecting public safety or preventing the use of commutation service for illegal purpose, including interruptions pursuant to a customer service agreement, interruptions pursuant to a service providerâs practices to protect its networks, and interruptions authorized by other laws such as during a hostage situation. This bill proposes several new exceptions including interruptions in a correctional facility to stop unlawful purposes, interruptions to broadcast emergency alerts, interruptions to execute a search warrant, and interruptions with the consent of the customer. Such new exceptions do not preclude anyone from challenging the lawfulness of an interruption, but it does provide greater clarity in what could be considered arguably standard situations.
- Prior Legislation: SCR 54 (Padilla) of 2013 requires the CLRC to report to the Legislature recommendations to revise statutes governing state and local agency access to customer information from communications service providers. Status: Chaptered by the Secretary of State, Resolution Chapter 115, Statutes of 2013.
SB 380 (Padilla) of 2013 generally requires a governmental entity to obtain an order, signed by a judicial officer, before communication services may be lawfully interrupted. Status: Chaptered by the Secretary of State, Chapter 371, Statutes of 2013. - Double-referral: This bill is double referred, and if passed by this Committee, will be referred to the Assembly Committee on Judiciary.
REGISTERED SUPPORT / OPPOSITION:
Support
None on file.
Opposition
None on file.
Analysis Prepared by: Edmond Cheung / C. & C. /
Discussed in Hearing
45SEC
Assembly Floor
3MIN
Senate Floor
7MIN
Senate Standing Committee on Energy, Utilities and Communications
Bill Author
Bill Co-Author(s):