Amended in Assembly April 25, 2016

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 632 of, and to add Section 632.01 to, 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 bill additionally would make it a crime for a person who unlawfully eavesdrops upon or records a confidential communication as described above to intentionally disclose, or attempt to disclose, or to intentionally distribute, or attempt to distribute, 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 crime for any person tobegin delete aid, abet, employ, or conspire with theend deletebegin insert employ or direct anyend insert personbegin delete who unlawfully eavesdrops upon or records a confidential communication to unlawfully do, permit, or cause the disclosure or distribution of the confidential communication.end deletebegin insert to commit those acts.end insert 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 require the above-specified fines to be imposed on a per-violation 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.

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:

P2    1

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, uses an electronic
5amplifying or recording device to eavesdrop upon or record the
6confidential communication, whether the communication is carried
7on among the parties in the presence of one another or by means
8of a telegraph, telephone, or other device, except a radio, shall be
9punishedbegin delete pursuant to subdivision (b).end delete

10begin delete(b)end deletebegin deleteend deletebegin deleteA violation of subdivision (a) shall be punishedend delete by a fine
11not exceeding two thousand five hundred dollars ($2,500) per
12violation, or imprisonment in a county jail not exceeding one year,
P3    1or in the state prison, or by both that fine and imprisonment. If the
2person has previously been convicted of a violation of this section
3or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be
4punished by a fine not exceeding ten thousand dollars ($10,000)
5per violation, by imprisonment in a county jail not exceeding one
6year, or in the state prison, or by both that fine and imprisonment.

begin delete

7(c)

end delete

8begin insert(b)end insert For the purposes of this section, “person” means an
9individual, business association, partnership, corporation, limited
10liability company, or other legal entity, and an individual acting
11or purporting to act for or on behalf of any government or
12subdivision thereof, whether federal, state, or local, but excludes
13an individual known by all parties to a confidential communication
14to be overhearing or recording the communication.

begin delete

15(d)

end delete

16begin insert(c)end insert For the purposes of this section, “confidential
17communication” means any communication carried on in
18circumstances as may reasonably indicate that any party to the
19communication desires it to be confined to the parties thereto, but
20excludes a communication made in a public gathering or in any
21legislative, judicial, executive, or administrative proceeding open
22to the public, or in any other circumstance in which the parties to
23the communication may reasonably expect that the communication
24may be overheard or recorded.

begin delete

25(e)

end delete

26begin insert(d)end insert Except as proof in an action or prosecution for violation of
27this section, evidence obtained as a result of eavesdropping upon
28or recording a confidential communication in violation of this
29section is not admissible in any judicial, administrative, legislative,
30or other proceeding.

begin delete

31(f)

end delete

32begin insert(e)end insert This section does not apply (1) to any public utility engaged
33in the business of providing communications services and facilities,
34or to the officers, employees, or agents thereof, if the acts otherwise
35prohibited by this section are for the purpose of construction,
36maintenance, conduct, or operation of the services and facilities
37of the public utility, (2) to the use of any instrument, equipment,
38facility, or service furnished and used pursuant to the tariffs of a
39public utility, or (3) to any telephonic communication system used
P4    1for communication exclusively within a state, county, city and
2county, or city correctional facility.

begin delete

3(g)

end delete

4begin insert(f)end insert This section does not apply to the use of hearing aids and
5similar devices, by persons afflicted with impaired hearing, for
6the purpose of overcoming the impairment to permit the hearing
7of sounds ordinarily audible to the human ear.

8

SEC. 2.  

Section 632.01 is added to the Penal Code, to read:

9

632.01.  

(a) A person who violates subdivision (a) of Section
10begin delete 632, in addition to any punishment under that section,end deletebegin insert 632end insert shall
11be punished pursuant to subdivision (c) if the person intentionally
12discloses or attempts to disclose, or distributes or attempts to
13distribute, in any manner, in any forum, including, but not limited
14to, Internet Web sites and social media, or for any purpose, the
15contents of the confidential communication obtained by that person
16in violation of subdivision (a) of Section 632. For purposes of this
17subdivision, “social media” means an electronic service or account,
18or electronic content, including, but not limited to, videos or still
19photographs, blogs, video blogs, podcasts, instant and text
20messages, email, online services or accounts, or Internet Web site
21profiles or locations.

22(b) A person whobegin delete aids, abets, employs, or conspires with aend delete
23begin insert employs or directs anyend insert person or persons to unlawfullybegin delete do, permit,
24or cause to be doneend delete
begin insert commitend insert any act described in subdivision (a)
25of this section or subdivision (a) of Sectionbegin delete 632,end deletebegin insert 632end insert shall be
26punished pursuant to subdivision (c).

27(c) A violation of subdivision (a) or (b) shall be punished by a
28fine not exceeding two thousand five hundred dollars ($2,500) per
29violation, or imprisonment in a county jail not exceeding one year,
30or in the state prison, or by both that fine and imprisonment. If the
31person has previously been convicted of a violation of this section,
32the person shall be punished by a fine not exceeding ten thousand
33dollars ($10,000) per violation, by imprisonment in a county jail
34not exceeding one year, or in the state prison, or by both that fine
35and imprisonment.

36

SEC. 3.  

No reimbursement is required by this act pursuant to
37Section 6 of Article XIII B of the California Constitution because
38the only costs that may be incurred by a local agency or school
39district will be incurred because this act creates a new crime or
40infraction, eliminates a crime or infraction, or changes the penalty
P5    1for a crime or infraction, within the meaning of Section 17556 of
2the Government Code, or changes the definition of a crime within
3the meaning of Section 6 of Article XIII B of the California
4Constitution.



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