Discussion

After careful consideration of the parties' arguments, we agree with Edison, SDG&E, Verizon and the ACLU that the Narcotic Officers have not made an adequate case for modifying D.90-12-121. As Verizon points out, it has been the policy of this Commission for two decades that telecommunications utilities should not release customer credit information or calling records to law enforcement agencies without a warrant or subpoena4, and this requirement is now reflected in several statutes applicable to both telecommunications and energy utilities.

When D.90-12-121 was issued in 1990 (nearly a decade after D.92860), all of the energy utilities except PG&E required a warrant or subpoena as a precondition to releasing customer information. As the Narcotic Officers concede, D.90-12-121 merely required PG&E to bring its practices into conformance with these other utilities. Until now, no law enforcement agency or group has complained that this basic procedural requirement imposes an undue burden on its activities.

The principal justification that the Narcotic Officers have presented for modifying the requirement of legal process for PG&E -- a justification that, if accepted, would logically seem to apply to the activities of all other utilities⁵ -- is that this requirement is inconsistent with Proposition 8, the Crime Victims' Bill of Rights, the relevant portion of which is now set forth in Article I, § 28(d) of the California Constitution.

The language of Article I, § 28(d) is straightforward. It provides in full:

"Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, sections 352, 782, or 1103. Nothing in this section shall affect any existing statutory or constitutional right of the press."

As the U.S. Supreme Court noted in California v. Greenwood, 486 U.S. 35, 44 (1988), the practical effect of Proposition 8 has been to "eliminat[e] the exclusionary rule for evidence seized in violation of state but not federal law." However, Proposition 8 does not authorize such seizures. As the California Supreme Court noted in In re Lance W., "what would have been an unlawful search or seizure in this state before the passage of [Proposition 8] would be unlawful today, and this is so even if it would pass muster under the federal Constitution." (37 Cal.3d at 886.)

While our District Courts of Appeal have consistently applied Proposition 8 to uphold the admission of trial evidence seized in violation of state constitutional standards (as long as federal standards under the Fourth Amendment are satisfied)6, these courts have been reluctant to rely upon Proposition 8 in non-criminal contexts. For example, in Gordon v. Superior Court, 55 Cal.App. 4^th 1556 (1997), an attorney whose checkbooks and other financial records had been seized pursuant to a warrant obtained by the Department of Insurance requested that the records be sealed, pursuant to a procedure authorized in § 1524(c) of the Penal Code. ⁷ When the attorney learned several months later that -- unbeknownst to him -- the records had been unsealed, he filed a motion seeking return of the records and a declaration that the unsealing had been improper.

The trial court denied relief, but the Second District Court of Appeal found that § 1524(c) had not been complied with and issued a preemptory writ of mandate. After noting that only one of the 326 checks and stubs seized pursuant to the warrant was payable to someone named in the warrant, the Court of Appeal rejected the argument that Proposition 8 served to excuse non-compliance with § 1524(c), and directed the trial court to rule on the attorney's privilege and other claims:

"The District Attorney contends the checks are not privileged. He says `no harm, no foul,' and relies on United States v. Miller (1976) 425 U.S. 435 . . . , where the court held there was no reasonable expectation of privacy in checks that were voluntarily conveyed to a bank in the ordinary course of business . . . The District Attorney concedes there is California law to the contrary . . . , but insists that [under Proposition 8,] federal constitutional standards must now be applied . . . Implicit in the District Attorney's argument is the assumption that we are dealing with a criminal case. He is mistaken.

"With the possible exception of Charles Smith . . ., Gordon's clients were not targeted by the criminal investigation that resulted in the issuance of the warrant for the search of Gordon's office. Insofar as we know (and insofar as it is relevant to this proceeding), there are no criminal charges pending against Gordon or his clients. The fact that Gordon's records were seized as part of a criminal investigation of others does not mean Gordon can be treated as a criminal. Indeed, the special master provisions of subdivision (c) of section 1524 apply only where the attorney is `not reasonably suspected' of any criminal activity. Accordingly, Proposition 8 has nothing to do with the price of tomatoes . . . The only issues here are the attorney-client privilege and the clients' rights of privacy." (55 Cal. App. 4^th at 1556; citations and footnote omitted.)

While the utility customers on whom the Narcotic Officers want information do not have privilege claims like those in Gordon, they do enjoy privacy rights based on Article I, § 13 of the California Constitution. The California Supreme Court has held, for example, that telephone customers reasonably expect that the numbers they call from their homes are private, and will be used by the telephone company only for billing purposes. Thus, when a record of these telephone numbers is provided to law enforcement agencies without legal process, the customers' privacy rights under Article I, § 13 are violated. People v. Blair, 25 Cal.3d 640, 653-54 (1979). Similarly, the Court has held that persons with unlisted telephone numbers have a reasonable expectation that their names and addresses will remain confidential, and that when this information is disclosed to law enforcement personnel without a warrant, the customers' rights under Article I, § 13 are violated. People v. Chapman, 36 Cal.3d 98, 108 (1984). While the Narcotic Officers are correct that Proposition 8 now makes customer information obtained in violation of these decisions admissible in criminal trials⁸, the holdings in Blair and Chapman counsel that, like the court in Gordon, we should be reluctant to rely on Proposition 8 outside the context of a criminal trial, especially when the proposed conduct would clearly contravene decisions of our Supreme Court.⁹

Our reluctance to rely upon Proposition 8 as grounds for modifying D.90-12-121 is increased by the fact that in recent years, statutes protecting the confidentiality of various types of utility customer information have been enacted by the Legislature. The most extensive restrictions are contained in Pub. Util. Code § 2891, subsection (a) of which provides that "no telephone or telegraph corporation shall make available to any other person or corporation, without first obtaining the residential subscriber's [written] consent," information including personal calling patterns, credit or financial information, services the subscriber purchases, and demographic information from which individual identifying characteristics have not been removed. Subsection (d)(6) does contain an exception to this prohibition for information requested by law enforcement agencies, but the exception states that the information must be provided "in response to lawful process."

Confidentiality legislation also applies to electricity customers. For example, as part of the electric restructuring legislation passed in 1997, Pub. Util. Code § 394.4(a) directed the Commission to adopt a minimum standard for the confidentiality of customer information obtained by electric service providers. The standard provides that "customer information shall be confidential unless the customer consents in writing. This shall encompass confidentiality of customer specific billing, credit, or usage information."¹⁰ And while Pub. Util. Code § 588, enacted in 1994, empowers inspectors and investigators in child abduction cases to obtain specified utility customer information without a warrant or subpoena in cases where the inspector or investigator has a "reasonable, good faith belief that the utility customer information is needed to assist the inspector or investigator in the location or recovery of [the] minor child or abductor," the statute provides that only specifically-designated inspectors or investigators may seek this information, requires the inspector or investigator to submit an affidavit of probable cause supporting the request to the utility, and requires the utility to retain such affidavits for at least one year.¹¹

In addition to the strong policy favoring customer privacy that is reflected in these statutes, we agree with Edison and Verizon that CNOA has not adequately explained why it waited nearly a decade after the issuance of D.90-12-121 to seek modification of the decision. While CNOA stresses that no law enforcement agency was a party to the List OII or was made aware of D.90-12-121 at the time of its issuance, CNOA does not contend that it was unaware of the PG&E tariff changes that resulted from D.90-12-121, which went into effect in December of 1991.¹² With respect to the period since then until the filing of its petition to modify¹³, CNOA merely asserts that D.90-12-121 has "constrained law enforcement's ability to investigate criminal activity in a timely manner." (Petition To Modify, p. 3.)

This assertion is inadequate for two reasons. First, as both Edison and Verizon point out, it does not satisfy the requirements of Rule 47(d), which requires any party who does not submit its petition to modify within one year after a decision is issued to "explain why the petition could not have been presented within one year of the effective date of the decision." Second, as Verizon puts it, "the severe staleness of [CNOA's] petition casts serious doubt on the very rationale for modification. . . If indeed the problem [for law enforcement] were as pressing as stated, CNOA would have sought relief sooner." (Verizon Response, p. 2.)

Finally, we note that PG&E - while urging denial of the specific relief sought by CNOA - argues that it is time to reconsider our rules on the circumstances under which customer information can be provided to law enforcement agencies. While PG&E has offered some justifications for doing so, it is clear that the task would be a time-consuming one, and that substantial Commission resources would have to be invested at precisely the time when the electricity crisis is, of necessity, consuming the lion's share of our attention. Because neither CNOA nor PG&E has demonstrated that the current rules are not working adequately, we decline the suggestion that we should reconsider these rules in the near future.

Comments on Draft Decision

The draft decision of the ALJ in this matter was mailed to the parties in accordance with Pub. Util. Code § 311(g)(1) and Rule 77.7 of the Rules of Practice and Procedure. Comments were filed on ___________________________, and reply comments were filed on _____________________________.

Findings of Fact

1. The requirement that telecommunications utilities not release customer information to law enforcement agencies in the absence of legal process (i.e., a warrant or subpoena) was imposed in D.92860.

2. By the time D.90-12-121 was issued, all energy utilities in California except PG&E had also adopted the practice of not releasing customer information to law enforcement agencies in the absence of legal process.

3. On March 8, 1991, PG&E filed a petition for modification of D.90-12-121, which sought permission to release customer information to law enforcement agencies without legal process in emergency situations.

4. PG&E's petition for modification of D.90-12-121 was denied in D.91-10-036.

5. No law enforcement agency or group other than CNOA has contended that its work has been significantly impaired by the Commission's requirement that customer information not be released to law enforcement agencies in the absence of legal process.

6. In recent years, the California Legislature has enacted a number of measures that protect the privacy of customer information held by both electric and telecommunications utilities.

7. In view of the Commission's other responsibilities, it would not be a good use of our scarce resources in the near future to conduct a proceeding to reconsider the circumstances under which customer information should be provided to law enforcement agencies.

Conclusions of Law

1. The practical effect of Proposition 8, the relevant part of which is set forth in Article I, § 28(d) of the California Constitution, has been to eliminate the exclusionary rule in criminal proceedings for evidence seized in violation of California law but not federal law.

2. Proposition 8 does not authorize searches and seizures that violate California law; it merely makes the fruits of such searches and seizures admissible in criminal proceedings, provided that federal law is complied with.

3. Few if any courts have been willing to give effect to Proposition 8 outside the context of criminal proceedings.

4. In view of the decisions referred to in Conclusion of Law (COL) 3, it would be unwise for this Commission to give Proposition 8 a broader effect than the effect described in COL 1.

5. CNOA has failed to demonstrate that the prohibition on releasing utility customer information to law enforcement agencies in the absence of legal process has significantly impaired such agencies from carrying out their duties.

6. CNOA has not satisfactorily explained why it waited at least eight years to file its petition for modification of D.90-12-121.

7. CNOA's petition for modification of D.90-12-121 should be denied.

ORDER

IT IS ORDERED that:

1. The petition for modification of Decision 90-12-121 filed on August 30, 2000 by the California Narcotic Officers' Association is denied.

2. Investigation 90-01-033, Application 89-07-030, and Case 86-06-004 are closed.

This order is effective today.

Dated , at San Francisco, California.

"As a matter of policy and practice almost all telephone companies in the state release calling records and credit information only in response to legal process. We think the telephone companies' present practices are reasonable but that the practices should be published as a tariff rule to give them sanction and to protect consumers from any slackening in the standards. Representatives of practically all state and local law enforcement agencies who testified at the hearing indicated that securing a search warrant as a condition to obtaining such information did not present a problem to their agencies." (5 CPUC2d at 762; footnote omitted.)