Senate Bill 2144

AN ACT TO REQUIRE THAT ALL CELL PHONES MANUFACTURED AND SOLD IN MISSISSIPPI AFTER A CERTAIN DATE MUST BE EQUIPPED WITH A KILL SWITCH; TO PROHIBIT INTERRUPTIONS OF COMMUNICATIONS SERVICES EXCEPT AS PROVIDED BY LAW; TO PROVIDE FOR JUDICIAL REVIEW; TO ENACT CERTAIN EXCEPTIONS; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. (1) For purposes of this section, the following terms have the following meanings:

(a) (i) "Smartphone" means a cellular radio telephone or other mobile voice communications handset device that includes all of the following features:

1. Utilizes a mobile operating system.

2. Possesses the capability to utilize mobile software applications, access and browse the Internet, utilize text messaging, utilize digital voice service, and send and receive email.

3. Has wireless network connectivity.

4. Is capable of operating on a long-term evolution network or successor wireless data network communication standards.

(ii) A "smartphone" does not include a radio cellular telephone commonly referred to as a "feature" or "messaging" telephone, a laptop, a tablet device, or a device that only has electronic reading capability.

(b) "Essential features" of a smartphone means the ability to use the smartphone for voice communications, text messaging, and the ability to browse the Internet, including the ability to access and use mobile software applications. "Essential features" does not include any functionality needed for the operation of the technological solution, nor does it include the ability of the smartphone to access emergency services by a voice call or text to the numerals "911," the ability of a smartphone to receive wireless emergency alerts and warnings, or the ability to call an emergency number predesignated by the owner.

(c) "Hard reset" means the restoration of a smartphone to the state it was in when it left the factory through processes commonly termed a factory reset or master reset.

(d) "Sold in Mississippi," or any variation thereof, means that the smartphone is sold at retail from a location within the state, or the smartphone is sold and shipped to an end-use consumer at an address within the state. "Sold in Mississippi" does not include a smartphone that is resold in the state on the secondhand market or that is consigned and held as collateral on a loan.

(2) (a) Except as provided in paragraph (c) of this subsection, any smartphone that is manufactured on or after July 1, 2016, and sold in Mississippi after that date, shall include a technological solution at the time of sale, to be provided by the manufacturer or operating system provider, that, once initiated and successfully communicated to the smartphone, can render the essential features of the smartphone inoperable to an unauthorized user when the smartphone is not in the possession of an authorized user. During the initial device setup process, the smartphone shall prompt an authorized user to enable the technological solution. The technological solution shall be reversible, so that if an authorized user obtains possession of the smartphone after the essential features of the smartphone have been rendered inoperable, the operation of those essential features can be restored by an authorized user. A technological solution may consist of software, hardware, or a combination of both software and hardware, and when enabled, shall be able to withstand a hard reset or operating system downgrade and shall prevent reactivation of the smartphone on a wireless network except by an authorized user.

(b) An authorized user of a smartphone may affirmatively elect to disable or opt-out of enabling the technological solution at any time. However, the physical acts necessary to disable or opt-out of enabling the technological solution may only be performed by the authorized user or a person specifically selected by the authorized user to disable or opt-out of enabling the technological solution.

(c) Any smartphone model that was first introduced before July 1, 2016, that cannot reasonably be reengineered to support the manufacturer's or operating system provider's technological solution, including if the hardware or software cannot support a retroactive update, is not subject to the requirements of this section.

(3) The knowing retail sale in Mississippi of a smartphone that does not comply with subsection (2) of this section may be subject to a civil penalty of not less than Five Hundred Dollars ($500.00) nor more than Two Thousand Five Hundred Dollars ($2,500.00) per smartphone sold in Mississippi in violation of this section. A suit to enforce this subsection may only be brought by the Attorney General or a district attorney. A failure of the technological solution due to hacking or other third-party circumvention may be considered a violation for purposes of this subsection, only if, at the time of sale, the seller had received notification from the manufacturer or operating system provider that the vulnerability cannot be remedied by a software patch or other solution. There is no private right of action to enforce this subsection.

(4) The retail sale in Mississippi of a smartphone shall not result in any civil liability to the seller and its employees and agents from that retail sale alone if the liability results from or is caused by failure of a technological solution required pursuant to this section, including any hacking or other third-party circumvention of the technological solution, unless at the time of sale the seller had received notification from the manufacturer or operating system provider that the vulnerability cannot be remedied by a software patch or other solution. Nothing in this subsection precludes a suit for civil damages on any other basis outside of the retail sale transaction, including, but not limited to, a claim of false advertising.

(5) Any request by a government agency to interrupt communications service utilizing a technological solution required by this section is subject to Section 2 of this act.

(6) Nothing in this section prohibits a network operator, device manufacturer, or operating system provider from offering a technological solution or other service in addition to the technological solution required to be provided by the device manufacturer or operating system provider pursuant to subsection (2) of this section.

(7) Nothing in this section requires a technological solution that is incompatible with, or renders it impossible to comply with, obligations under state and federal law and regulation related to any of the following:

(a) The provision of emergency services through the 911 system, including text to 911, bounce-back messages, and location accuracy requirements.

(b) Participation in the wireless emergency alert system.

(8) The Legislature finds and declares that the enactment of a uniform policy to deter thefts of smartphones and to protect the privacy of smartphone users if their smartphones are involuntarily acquired by others is a matter of statewide concern and no municipality or county shall impose requirements on manufacturers, operating system providers, wireless carriers, or retailers relating to technological solutions for smartphones.

      SECTION 2.  (1)  For purposes of this section, the following terms have the following meanings:

            (a)  "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.

            (b)  "Governmental entity" means every local government, including a municipality, county, 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)  (i)  "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.

                  (ii)  "Interrupt communications service" does not include any interruption of communications service pursuant to a customer service agreement, a contract, a tariff, a provider's internal practices to protect the security of its networks, or that is authorized by law.

                  (iii)  "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.  However, "interruption of communications service" includes any interruption of service resulting from an order pursuant to Section 3 of this act 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.

            (d)  "Judicial officer" means a magistrate, judge, justice, or any person appointed by a court to serve in one (1) of these capacities of any state or federal court located in this state.

(2) (a) Unless authorized pursuant to subsection (3) of this section, 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 before the interruption. The order shall include all of the following findings:

(i) 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.

(ii) That absent immediate and summary action to interrupt communications service, serious, direct, and immediate danger to public safety, health, or welfare will result.

(iii) 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 13 of Article 3 of the Mississippi Constitution of 1890, or a violation of any other rights under federal or state law.

(b) 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.

(c) 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.

(3) (a) Communications service shall not be interrupted without first obtaining a court order except pursuant to this subsection (3) of this section.

(b) 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 if the interruption meets the grounds for issuance of a court order pursuant to subsection (2) of this section and if the governmental entity does all of the following:

(i) 1. Applies for a court order authorizing the interruption of communications service without delay, but within six (6) hours after commencement of an interruption of communications service except as provided in item 2 of this subparagraph (i).

2. If it is not possible to apply for a court order within six (6) 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 twenty-four (24) hours after commencement of an interruption of communications service. If an application is filed more than six (6) hours after commencement of an interruption of communications service pursuant to this item 2, the application shall include a declaration under penalty of perjury stating the reason or reasons that the application was not submitted within six (6) hours after commencement of the interruption of communications service.

(ii) 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 six (6) hours due to the emergency, then the governmental entity shall submit a copy of the signed statement of intent to the court within six (6) hours.

(iii) Provides conspicuous notice of the application for a court order authorizing the communications service interruption on its Internet website without delay, unless the circumstances that justify an interruption of communications service without first obtaining a court order justify not providing the notice.

(4) An order to interrupt communications service, or a signed statement of intent provided pursuant to subsection (3) of this section, that falls within the federal Emergency Wireless Protocol shall be served on the Mississippi Emergency Management Agency. All other orders to interrupt communications service or statements of intent shall be served on the communications service provider's contact for receiving requests from law enforcement, including receipt of and responding to state or federal warrants, orders, or subpoenas.

(5) 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.

(6) Good-faith reliance by a communications service provider upon an order of a judicial officer authorizing the interruption of communications service pursuant to subsection (2) of this section, or upon a signed statement of intent to apply for a court order pursuant to subsection (3) of this section, 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.

(7) The Legislature finds and declares that ensuring that Mississippi 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, an area that is preempted by the state, and no municipality or county may impose requirements concerning communications interruption.

      SECTION 3.  (1)  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, the 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 the suspected person with any person other than a peace officer or a person authorized by the peace officer.

      (2)  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.

      (3)  Good-faith reliance on an order by a supervising law enforcement official shall constitute a complete defense to any action brought under this section.

      SECTION 4.  This act shall take effect and be in force from and after July 1, 2016.