Amended in Assembly April 12, 2016

Amended in Assembly March 17, 2016

California Legislature—2015–16 Regular Session

Assembly BillNo. 1671


Introduced by Assembly Member Gomez

January 15, 2016


An act to amend Section 632begin delete ofend deletebegin insert of, and to add Section 632.01 to,end insert the Penal Code, relating to confidential communications.

LEGISLATIVE COUNSEL’S DIGEST

AB 1671, as amended, Gomez. Confidential communications: disclosure.

(1) Existing law makes it a crime for a person to intentionally eavesdrop upon or record a confidential communication by means of an electronic amplifying or recording device without the consent of all parties to the confidential communication. Existing law defines a confidential communication as any communication carried on in circumstances that reasonably indicate that any party to the communication desires it to be confined to the parties thereto.

This billbegin insert additionallyend insert would make it a crimebegin insert for a person who unlawfully eavesdrops upon or records a confidential communication as described aboveend insert to intentionallybegin delete use, or attempt to use, or to intentionallyend delete disclose, or attempt to disclose,begin insert or to intentionally distribute, or attempt to distribute,end insert the contents of a confidential communication without the consent of all parties to the confidential communication unless specified conditions are met. The bill would also make it a crimebegin insert for any personend insert to aid,begin insert abet,end insert employ, or conspire withbegin delete anyend deletebegin insert theend insert personbegin insert who unlawfully eavesdrops upon or records a confidential communicationend insert to unlawfully do, permit, or cause thebegin delete recordation, use, orend delete disclosurebegin insert or distributionend insert ofbegin delete aend deletebegin insert theend insert confidential communication. By creating new crimes, this bill would impose a state-mandated local program.

(2) Existing law makes the above-specified crime of eavesdropping punishable by a fine not to exceed $2,500 or imprisonment in a county jail not exceeding one year, or in the state prison for 16 months or 2 or 3 years. If the person has previously been convicted of eavesdropping, or has previously been convicted of specified invasion of privacy crimes, existing law requires the person to be punished by a fine not exceeding $10,000, by imprisonment in a county jail not exceeding one year, or in the state prison for 16 months or 2 or 3 years.

This bill would requirebegin delete the-above specifiedend deletebegin insert the above-specifiedend insert fines to be imposed on a per-violationbegin delete basis.end deletebegin insert basis and would impose the same penalties prescribed for the unlawful eavesdropping upon or recording of a confidential communication to the disclosure crimes created by the bill. The bill also would make various technical, nonsubstantive changes to existing law.end insert

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.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

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SECTION 1.  

Section 632 of the Penal Code is amended to
2read:

3

632.  

(a) A person who, intentionally and without the consent
4of all parties to a confidential communication,begin delete does any of the
5following shall be punished pursuant to subdivision (b):end delete

6begin delete(1)end deletebegin deleteend deletebegin deleteBy means of anyend deletebegin insert uses anend insert electronic amplifying or recording
7begin delete device, eavesdropsend deletebegin insert device to eavesdropend insert upon orbegin delete recordsend deletebegin insert recordend insert
8 the confidential communication, whether the communication is
9carried on among the parties in the presence of one another or by
10means of a telegraph, telephone, or other device, except abegin delete radio.end delete
11
begin insert radio, shall be punished pursuant to subdivision (b).end insert

begin delete

P3    1(2) Uses, attempts to use, discloses, or attempts to disclose, in
2any manner, or for any purpose, the contents of any confidential
3communication knowing or having reason to know the information
4was obtained in violation of paragraph (1).

end delete
begin delete

5(3) Aids, employs, or conspires with any person or persons to
6unlawfully do, permit, or cause to be done any of the acts described
7in this subdivision.

end delete

8(b) A violation of subdivision (a) shall be punished by a fine
9not exceeding two thousand five hundred dollars ($2,500) per
10violation, or imprisonment in a county jail not exceeding one year,
11or in the state prison, or by both that fine and imprisonment. If the
12person has previously been convicted of a violation of this section
13or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be
14punished by a fine not exceeding ten thousand dollars ($10,000)
15per violation, by imprisonment in a county jail not exceeding one
16year, or in the state prison, or by both that fine and imprisonment.

17(c) For the purposes of this section, “person” means an
18individual, business association, partnership, corporation, limited
19liability company, or other legal entity, and an individual acting
20or purporting to act for or on behalf of any government or
21subdivision thereof, whether federal, state, or local, but excludes
22an individual known by all parties to a confidential communication
23to be overhearing or recording the communication.

24(d) For the purposes of this section, “confidential
25communication” means any communication carried on in
26circumstances as may reasonably indicate that any party to the
27communication desires it to be confined to the parties thereto, but
28excludes a communication made in a public gathering or in any
29legislative, judicial,begin delete executiveend deletebegin insert executive,end insert or administrative
30proceeding open to the public, or in any other circumstance in
31which the parties to the communication may reasonably expect
32that the communication may be overheard or recorded.

33(e) Except as proof in an action or prosecution for violation of
34this section,begin delete noend delete evidence obtained as a result of eavesdropping
35upon or recording a confidential communication in violation of
36this sectionbegin delete shall beend deletebegin insert is notend insert admissible in any judicial, administrative,
37legislative, or other proceeding.

38(f) This section does not apply (1) to any public utility engaged
39in the business of providing communications services and facilities,
40or to the officers,begin delete employeesend deletebegin insert employees,end insert or agents thereof,begin delete whereend delete
P4    1begin insert ifend insert the acts otherwise prohibited by this section are for the purpose
2of construction, maintenance,begin delete conductend deletebegin insert conduct,end insert or operation of the
3services and facilities of the public utility,begin delete orend delete (2) to the use of any
4instrument, equipment, facility, or service furnished and used
5pursuant to the tariffs of a public utility, or (3) to any telephonic
6communication system used for communication exclusively within
7a state, county, city and county, or city correctional facility.

8(g) This section does not apply to the use of hearing aids and
9similar devices, by persons afflicted with impaired hearing, for
10the purpose of overcoming the impairment to permit the hearing
11of sounds ordinarily audible to the human ear.

begin delete

12(h) Paragraph (2) of subdivision (a) does not apply to any
13member of the media who uses, attempts to use, discloses, or
14attempts to disclose, a confidential communication if all of the
15following are true:

end delete
begin delete

16(1) The communication is truthful and regarding a matter of
17public concern.

end delete
begin delete

18(2) The communication was obtained lawfully by the member
19of the media and not obtained by him or her in violation of
20paragraph (1) of subdivision (a).

end delete
begin delete

23 21(3) The person did not know who was responsible for obtaining
22the information.

end delete
23begin insert

begin insertSEC. 2.end insert  

end insert

begin insertSection 632.01 is added to the end insertbegin insertPenal Codeend insertbegin insert, to read:end insert

begin insert
24

begin insert632.01.end insert  

(a) A person who violates subdivision (a) of Section
25632, in addition to any punishment under that section, shall be
26punished pursuant to subdivision (c) if the person intentionally
27discloses or attempts to disclose, or distributes or attempts to
28distribute, in any manner, in any forum, including, but not limited
29to, Internet Web sites and social media, or for any purpose, the
30contents of the confidential communication obtained by that person
31in violation of subdivision (a) of Section 632. For purposes of this
32subdivision, “social media” means an electronic service or
33account, or electronic content, including, but not limited to, videos
34or still photographs, blogs, video blogs, podcasts, instant and text
35messages, email, online services or accounts, or Internet Web site
36profiles or locations.

37
(b) A person who aids, abets, employs, or conspires with a
38person or persons to unlawfully do, permit, or cause to be done
39any act described in subdivision (a) of this section or subdivision
40(a) of Section 632, shall be punished pursuant to subdivision (c).

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(c) A violation of subdivision (a) or (b) shall be punished by a
2fine not exceeding two thousand five hundred dollars ($2,500) per
3violation, or imprisonment in a county jail not exceeding one year,
4or in the state prison, or by both that fine and imprisonment. If the
5person has previously been convicted of a violation of this section,
6the person shall be punished by a fine not exceeding ten thousand
7dollars ($10,000) per violation, by imprisonment in a county jail
8not exceeding one year, or in the state prison, or by both that fine
9and imprisonment.

end insert
10

begin deleteSEC. 2.end delete
11
begin insertSEC. 3.end insert  

No reimbursement is required by this act pursuant to
12Section 6 of Article XIII B of the California Constitution because
13the only costs that may be incurred by a local agency or school
14district will be incurred because this act creates a new crime or
15infraction, eliminates a crime or infraction, or changes the penalty
16for a crime or infraction, within the meaning of Section 17556 of
17the Government Code, or changes the definition of a crime within
18the meaning of Section 6 of Article XIII B of the California
19Constitution.



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