Amended in Assembly May 18, 2016

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

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(Principal coauthor: Assembly Member Santiago)

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(Coauthor: Senator Jackson)

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January 15, 2016


An act to amendbegin delete Section 632end deletebegin insert Sections 632 and 633.5end insert 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 abegin delete crimeend deletebegin insert crime, subject to specified exemptions,end insert 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.begin insert Existing law exempts from the prohibition the recording of a confidential communication made for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of certain crimes, including any felony involving violence against the person making the recording. end insert

This bill additionally would make it a crime for a person who unlawfully eavesdrops upon or records a confidential communication as described abovebegin insert with a health care provider, as defined,end insert to intentionallybegin delete disclose, or attempt to disclose, or to intentionally distribute, or attempt to distribute,end deletebegin insert disclose or distributeend insert the contents ofbegin delete aend deletebegin insert theend insert confidential communication without the consent of all parties to the confidential communication unless specified conditions are met.begin insert end insertbegin insertThe bill would make this prohibition subject to the same exemptions as are applicable to the prohibition on eavesdropping upon or recording a confidential communication as described above. end insert The bill would also make it a crime for any person tobegin delete employ or direct any person to commit those acts.end deletebegin insert aid or abet any person in the commission of those offenses. The bill would specify, with respect to the exemption for recording communications believed to relate to the commission of a crime by a party to the communication, that a felony involving violence includes human trafficking, as defined. 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:

P3    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
9punished by a fine not exceeding two thousand five hundred dollars
10($2,500) per violation, or imprisonment in a county jail not
11exceeding one year, or in the state prison, or by both that fine and
12imprisonment. If the person has previously been convicted of a
13violation of this section or Section 631, 632.5, 632.6, 632.7, or
14 636, the person shall be punished by a fine not exceeding ten
15thousand dollars ($10,000) per violation, by imprisonment in a
16county jail not exceeding one year, or in the state prison, or by
17both that fine and imprisonment.

18(b) For the purposes of this section, “person” means an
19individual, business association, partnership, corporation, limited
20liability company, or other legal entity, and an individual acting
21or purporting to act for or on behalf of any government or
22subdivision thereof, whether federal, state, or local, but excludes
23an individual known by all parties to a confidential communication
24to be overhearing or recording the communication.

25(c) For the purposes of this section, “confidential
26communication” means any communication carried on in
27circumstances as may reasonably indicate that any party to the
28communication desires it to be confined to the parties thereto, but
29excludes a communication made in a public gathering or in any
30legislative, judicial, executive, or administrative proceeding open
31to the public, or in any other circumstance in which the parties to
32the communication may reasonably expect that the communication
33may be overheard or recorded.

34(d) Except as proof in an action or prosecution for violation of
35this section, evidence obtained as a result of eavesdropping upon
36or recording a confidential communication in violation of this
37section is not admissible in any judicial, administrative, legislative,
38or other proceeding.

P4    1(e) This section does not apply (1) to any public utility engaged
2in the business of providing communications services and facilities,
3or to the officers, employees, or agents thereof, if the acts otherwise
4prohibited by this section are for the purpose of construction,
5maintenance, conduct, or operation of the services and facilities
6of the public utility, (2) to the use of any instrument, equipment,
7facility, or service furnished and used pursuant to the tariffs of a
8public utility, or (3) to any telephonic communication system used
9for communication exclusively within a state, county, city and
10county, or city correctional facility.

11(f) This section does not apply to the use of hearing aids and
12similar devices, by persons afflicted with impaired hearing, for
13the purpose of overcoming the impairment to permit the hearing
14of sounds ordinarily audible to the human ear.

15

SEC. 2.  

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

16

632.01.  

(a) A person who violates subdivision (a) of Section
17632 shall be punished pursuant to subdivision (c) if the person
18intentionally discloses orbegin delete attempts to disclose, or distributes or
19attempts to distribute,end delete
begin insert distributes,end insert in any manner, in any forum,
20including, but not limited to, Internet Web sites and social media,
21or for any purpose, the contents ofbegin delete theend deletebegin insert aend insert confidential
22communicationbegin insert with a health care provider that isend insert obtained by
23that person in violation of subdivision (a) of Section 632. For
24purposes of this subdivision, “social media” means an electronic
25service or account, or electronic content, including, but not limited
26to, videos or still photographs, blogs, video blogs, podcasts, instant
27and text messages, email, online services or accounts, or Internet
28Web site profiles or locations.

29(b) begin insert(1)end insertbegin insertend insert A person whobegin delete employs or directs any person or persons
30to unlawfully commit any actend delete
begin insert aids or abets the commission of an
31offenseend insert
described in subdivision (a) of this sectionbegin delete or subdivision
32(a) of Section 632end delete
begin insert when another party to the confidential
33communication is a health care providerend insert
shall be punished pursuant
34to subdivision (c).

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35
(2) For purposes of this section a person “aids or abets the
36commission of an offense” when he or she, with knowledge of the
37unlawful purpose of the perpetrator and with the intent or purpose
38of committing, facilitating, or encouraging the commission of the
39offense, by act or advice, aids, promotes, encourages, or instigates
40the commission of the offense.

end insert

P5    1(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.

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10
(d) For purposes of this section, “health care provider” means
11any of the following:

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12
(1) A person licensed or certified pursuant to Division 2
13(commencing with Section 500) of the Business and Professions
14Code.

end insert
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15
(2) A person licensed pursuant to the Osteopathic Initiative Act
16or the Chiropractic Initiative Act.

end insert
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17
(3) A person certified pursuant to Division 2.5 (commencing
18with Section 1797) of the Health and Safety Code.

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19
(4) A clinic, health dispensary, or health facility licensed or
20exempt from licensure pursuant to Division 2 (commencing with
21Section 1200) of the Health and Safety Code.

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22
(5) An employee, volunteer, or contracted agent of any group
23practice prepayment health care service plan regulated pursuant
24to the Knox-Keene Health Care Service Plan Act of 1975 (Chapter
252.2 (commencing with Section 1340) of Division 2 of the Health
26and Safety Code).

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27
(6) An employee, volunteer, independent contractor, or
28professional student of a clinic, health dispensary, or health care
29facility or health care provider described in this subdivision.

end insert
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30
(7) A professional organization that represents any of the other
31health care providers described in this subdivision.

end insert
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32
(e) (1) Subdivisions (a) and (b) do not apply to the disclosure
33or distribution of a confidential communication pursuant to any
34of the following:

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35
(A) Any party as described in Section 633 acting within the
36scope of his or her authority overhearing or recording a
37confidential communication that he or she may lawfully overhear
38or record pursuant to that section.

end insert
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39
(B) Any party as described in Section 633.02 overhearing or
40recording a confidential communication related to sexual assault
P6    1or other sexual offense that he or she may lawfully overhear or
2record pursuant to that section, or using or operating a body-worn
3camera as authorized pursuant to that section.

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4
(C) A city attorney as described in Section 633.05 overhearing
5or recording any communication that he or she may lawfully
6overhear or record pursuant to that section.

end insert
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7
(D) An airport law enforcement officer recording a
8communication received on an incoming telephone line pursuant
9to Section 633.1.

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10
(E) A party to a confidential communication recording the
11communication for the purpose of obtaining evidence reasonably
12believed to relate to the commission by another party to the
13communication of a crime as specified in Section 633.5.

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14
(F) A victim of domestic violence recording a prohibited
15communication made to him or her by the perpetrator pursuant
16to Section 633.6.

end insert
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17
(G) A peace officer using electronic amplifying or recording
18devices to eavesdrop on and record the otherwise confidential oral
19communications of individuals within a location when responding
20to an emergency situation that involves the taking of a hostage or
21the barricading of a location pursuant to Section 633.8.

end insert
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22
(2) This section does not affect the admissibility of any evidence
23that would otherwise be admissible pursuant to the authority of
24any section specified in paragraph (1).

end insert
25begin insert

begin insertSEC. 3.end insert  

end insert

begin insertSection 633.5 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert

26

633.5.  

Nothing in Section 631, 632, 632.5, 632.6, or 632.7
27prohibits one party to a confidential communication from recording
28the communication for the purpose of obtaining evidence
29reasonably believed to relate to the commission by another party
30to the communication of the crime of extortion, kidnapping,
31bribery, any felony involving violence against the person,
32begin insert including, but not limited to, human trafficking, as defined in
33Section 231.6,end insert
or a violation of Section 653m.begin delete Nothing in Sectionend delete
34begin insert Sectionsend insert 631, 632, 632.5,begin delete 632.6, orend deletebegin insert 632.6, andend insert 632.7begin delete rendersend deletebegin insert do
35not renderend insert
any evidence so obtained inadmissible in a prosecution
36for extortion, kidnapping, bribery, any felony involving violence
37against the person,begin insert including, but not limited to, human trafficking,
38as defined in Section 231.6,end insert
a violation of Section 653m, or any
39crime in connection therewith.

P7    1

begin deleteSEC. 3.end delete
2
begin insertSEC. 4.end insert  

No reimbursement is required by this act pursuant to
3Section 6 of Article XIII B of the California Constitution because
4the only costs that may be incurred by a local agency or school
5district will be incurred because this act creates a new crime or
6infraction, eliminates a crime or infraction, or changes the penalty
7for a crime or infraction, within the meaning of Section 17556 of
8the Government Code, or changes the definition of a crime within
9the meaning of Section 6 of Article XIII B of the California
10Constitution.



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