A nationwide civil-rights organization is up in arms about a proposal that would give law enforcement agencies the power to disrupt electronic communication services during an emergency—without prior notice.
The California Law Revision Commission (CLRC) wants to expand the law—for the disruption of "electronic communications”— which for three years has allowed officials to impede communication services to an individual who has taken hostages, or in "cases of extreme emergency involving an immediate danger of death or great bodily injury where there is insufficient time to obtain a court order." The Commission has analyzed the controlling law and concluded that government action to halt communications can be constitutional when in accordance with procedures properly designed to protect free expression and due process rights. The American Civil Liberties Union (ACLU) opposes any government-directed interruption of wireless services that interferes with First Amendment rights and is concerned about the law's ramifications, proposing changes to its language before the bill sunsets in 2020.
The ACLU's California Technology and Civil Liberties Policy Director, Nicole A. Ozer, said people depend on the Internet and visual communications to be able to connect and advocate for change. “There are opportunities to tighten the law, where an emergency exception isn’t used in ways that aren’t truly emergencies,” Ozer said. “A recording of that would be great. How often is the government utilizing the emergency exception under the law?” “The last years have been a prime example of how important the Internet and visual communications are to protest and be active against issues that involve police brutality, racial justice, and every issue under the sun,” explained Ozer. In a September letter addressed to the CLRC, the ACLU and the Electronic Frontier Foundation wrote that the proposed legislation would alter the definition of electronic communication to encompass a much wider set of communications, broadening the government’s authority to curtail online speech. In 2011, the Bay Area Rapid Transit Agency shut down mobile services for several hours during a protest after a police officer shot and killed a homeless man at the San Francisco Civic Center station. The incident provoked BART to cut off cellphone services for several hours as activists prepared for another rally. Following the shutdown, BART’s board adopted a policy allowing an interference of communication services under certain circumstances without court review. BART’s actions led the Federal Communications Commission to hold a hearing on wireless service shutdowns. Public comments stated it would create more public safety problems than solutions such as generating obstacles for first responders to communicate effectively. ACLU staffers argued in a 2012 letter to the FCC that the interruptions were in direct violation of the Constitution and would silence protected speech. The following year, the telecommunication services interruption bill SB 380 was enacted by then-Senator and current Secretary of State Alex Padilla. The bill requires a governmental entity to obtain an order signed by a judicial officer before communication services may be lawfully interrupted. “Wireless service is an extremely valuable tool to enhance public safety during emergencies,” said Padilla. “This bill establishes standard to prevent the arbitrary shutdown or interruption of wireless service in California.” The bill—signed into law by Gov. Jerry Brown in 2013—directed the CLRC to study the constitutionality of government interruption of communication services and propose reforms to improve procedures used to take such action. The CLRC will hold another meeting at the State Capitol to review revised draft recommendations made by the ACLU in December. “We rely on visual communications and it’s essential to make sure the government can’t interfere with those communications,” said Ozer. “This is essential protection to make sure that community members can communicate about important issues in this digital age.”