Responses to the Narcotic Officers' Petition To Modify

Responses to the Narcotic Officers' petition were filed on October 16, 2000 by PG&E, Southern California Edison Company (Edison), San Diego Gas & Electric Company (SDG&E) and Verizon California Inc. (Verizon). With the permission of the assigned Administrative Law Judge (ALJ), the American Civil Liberties Union of Northern California, Inc. (ACLU) filed a response on November 3, 2000, and the Narcotic Officers filed a reply to all of the responses on November 20, 2000. With the exception of PG&E -- which suggests that we hold a hearing to develop new rules governing the release of customer information to law enforcement -- all of the responses strongly oppose the relief sought by the Narcotic Officers.

Edison's objections to changing the existing rules are perhaps the most broad-based. First, Edison argues that the petition should be summarily denied for failure to comply with Rule 47 of the Rules of Practice and Procedure. Rule 47(d) requires that a petition for modification of a decision must ordinarily be filed within one year after the decision's effective date, and that if the petition is filed later than that, an explanation must be offered for why it "could not have been presented" within the one-year period. Edison argues that the Narcotic Officers "completely fail[] to give any reason why [they] waited almost ten years to request modification. " (Edison Response, p. 3.)

Second, Edison argues that the relief sought by the Narcotic Officers is contrary to the trend of legislation and Commission decisions in recent years, both of which require customer permission before utility information on customers can be released to third parties. Edison notes, for example, that Pub. Util. Code § 394.4, which addresses minimum consumer protection standards for electric service providers, requires that "customer information shall be confidential unless the customer consents in writing. This shall encompass confidentiality of customer specific billing, credit, or usage information."

Third, Edison takes sharp issue with the Narcotic Officers' claim that their petition finds support in the Crime Victims' Bill of Rights. Quoting In re Lance W., 37 Cal.3d 873 (1985), a leading decision on Proposition 8, Edison argues that all this provision did was to "eliminate a judicially-created remedy for violations of search and seizure provisions of the federal or state Constitutions, through the exclusion of evidence so obtained, except to the extent that exclusion remains federally compelled." (37 Cal.3d at 886-887.) But, Edison continues, that change to evidentiary rules does not justify giving permission to law enforcement personnel to conduct free-roving inquiries into the information that utilities must maintain on their customers:

"[W]hether or not a criminal defendant could preclude the use at trial of evidence obtained without legal process is irrelevant to the question of whether law enforcement can require utilities to produce that information without such process of law. A customer of [Edison] for whom a narcotics officer seeks information may be a criminal suspect but is not yet a criminal defendant. Using [CNOA's] logic and interpretation of the Crime Victims' Bill of Rights would vitiate all protections against unreasonable search and seizure and mean that narcotic officers never need to obtain search warrants or subpoenas for any purpose." (Edison Response, pp. 4-5.)

Finally, Edison notes that the Narcotic Officers are asking the Commission to add language to D.90-12-121 providing that "a law enforcement agency may request and shall receive " customer information from utilities, without citing any authority justifying such an order. Edison contends this is a fatal omission, because Edison "is not aware of any authority given to the Commission to assist law enforcement (or any other third party) by ordering utilities to turn over information when the reason for production has nothing to do with the utility's or the Commission's business." (Id. at 5.)

In its response, SDG&E argues that the petition to modify should be denied because the Commission has already rejected, in D.91-10-036, arguments similar to those made by the Narcotic Officers. SDG&E points out that after D.90-12-121 was issued, PG&E sought modification of the decision on the ground that the utility should be permitted to release customer information to law enforcement authorities in the absence of legal process "in emergency situations where public safety is jeopardized." As examples of such emergencies, PG&E cited "unpredictable events such as natural disasters, fires, explosions, criminal activities where the possibility of imminent violence or harm exists, hostage situations, and fugitive situations where a felon might be expected to flee or resist."

The Commission denied PG&E's petition in D.91-10-036, concluding that PG&E had failed to offer any evidence that the subpoena requirement would lead to unacceptable delays in emergencies, and also pointing out that "PG&E does not propose any controls to insure that an emergency condition actually exists or justify why its customer information policy should be different from the standard practice of other California energy utilities." (Mimeo. at 3.) In SDG&E's view, the Narcotic Officers' arguments for eliminating the requirement of legal process are similar to those considered in D.91-10-036, and SDG&E faults the Narcotic Officers for failing to mention this decision in their petition. SDG&E also argues that the relief sought in the petition is contrary to the emphasis on customer privacy protections in recent Commission proceedings such as I.00-02-004.³ (SDG&E Response, pp. 2-3.)

In its response, Verizon argues that in addition to the Narcotic Officers' failure to comply with Rule 47(d), their long delay in seeking modification of D.90-12-121:

". . . casts serious doubt on the very rationale for modification. CNOA states that D.90-12-121 `has constrained law enforcement's ability to investigate criminal activity in a timely manner.' If indeed the problem were as pressing as stated, CNOA would have sought relief sooner. Indeed, the common practice of virtually all California utilities well prior to the issuance of D.90-12-121 has been to release customer information only pursuant to lawful process." (Verizon Response, p. 2.)

Verizon notes that the requirement of legal process before customer information is released to law enforcement has been in place for telecommunications companies since at least 1981, when D.92860 (5 CPUC2d 745) was decided. Further, Verizon points out, insofar as the Narcotic Officers may also be seeking a change in the tariffs of telecommunications companies, such relief would violate Pub. Util. Code § 2891, which prohibits the release without the customer's consent of information such as the customer's credit history and calling patterns, except under circumstances including "information provided to a law enforcement agency in response to lawful process." (Verizon Response, pp. 2-3.)

The ACLU's response enlarges upon Edison's arguments about why the Victims' Bill of Rights does not support the relief sought by the CNOA. The ACLU points out that the protections against unreasonable searches and seizures inherent in the privacy clause of the California Constitution (Article I, § 13) are broader than their counterparts in the Fourth Amendment to the federal Constitution, and argues that:

". . . the California Supreme Court [has] established that people do not relinquish the privacy of personal information by opening accounts with companies that furnish basic financial, residential and communication services. Thus, banks, public utilities, and credit card companies may not release customer information to law enforcement authorities in absence of valid, judicially-supervised, legal process." (ACLU Response, p. 1.)

After quoting Lance W.'s holding that Proposition 8 merely eliminated the remedy of excluding trial evidence obtained in violation of state constitutional search standards, the ACLU continues:

"Thus, if a public utility were to release customer information to law enforcement officials acting without a warrant, the information would not be excluded from a subsequent criminal trial, but the disclosure would constitute a clear violation of the California Constitution. (Id. at 3.)

Unlike the other parties who filed responses, PG&E does not flatly oppose the type of relief sought by the Narcotic Officers. Although the company opposes the specific language changes proposed in CNOA's petition, PG&E - after noting its own unsuccessful petition for modification that resulted in D.91-10-036 - argues that it is time for the Commission to reexamine the question of when law enforcement agencies should be provided with customer information in the absence of legal process:

"PG&E is sympathetic to the concerns raised by CNOA in regard to the difficulties facing law enforcement agencies and recognizes that there are situations where a limited exception to the subpoena requirement may be warranted. However, PG&E takes its role in protecting the confidential information of its customers very seriously. PG&E does not think it is appropriate, based solely on the Petition filed by the CNOA, to overturn the long standing policy established in Decision 90-12-121 to `require release of information to law enforcement agencies only pursuant to legal process.' While the concerns of law enforcement certainly deserve a fair hearing, the interests of customers in maintaining the privacy of the confidential information they provide to utilities should receive careful consideration by the Commission prior to modifying the current process." (PG&E Response, pp. 1-2; footnote omitted.)

PG&E continues that any new rules adopted by the Commission should be applied uniformly to all utilities, and should include very specific requirements as to (1) what information can be released, (2) what form the request for information should take, and (3) to whom within the utilities such requests should be submitted. (Id. at 3-4.)

"Consumers have a right of personal privacy, to protection from unauthorized use of their records and personal information, and to reject intrusive communications and technology." (OII, Mimeo. at 4.)