BILL NUMBER: AB 1671 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 18, 2016
AMENDED IN ASSEMBLY APRIL 25, 2016
AMENDED IN ASSEMBLY APRIL 12, 2016
AMENDED IN ASSEMBLY MARCH 17, 2016
INTRODUCED BY Assembly Member Gomez
( Principal coauthor: Assembly Member
Santiago )
( Coauthor: Senator Jackson
)
JANUARY 15, 2016
An act to amend Section 632 Sections 632
and 633.5 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 crime,
subject to specified exemptions, 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.
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.
This bill additionally would make it a crime for a person who
unlawfully eavesdrops upon or records a confidential communication as
described above with a health care provider, as defined,
to intentionally disclose, or attempt to disclose, or to
intentionally distribute, or attempt to distribute,
disclose or distribute the contents of a
the confidential communication without the consent of all
parties to the confidential communication unless specified conditions
are met. The 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. The bill would also make it a crime for any
person to employ or direct any person to commit those acts.
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. 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:
SECTION 1. Section 632 of the Penal Code is amended to read:
632. (a) A person who, intentionally and without the consent of
all parties to a confidential communication, uses an electronic
amplifying or recording device to eavesdrop upon or record the
confidential communication, whether the communication is carried on
among the parties in the presence of one another or by means of a
telegraph, telephone, or other device, except a radio, shall be
punished by a fine not exceeding two thousand five hundred dollars
($2,500) per violation, or imprisonment in a county jail not
exceeding one year, or in the state prison, or by both that fine and
imprisonment. If the person has previously been convicted of a
violation of this section or Section 631, 632.5, 632.6, 632.7, or
636, the person shall be punished by a fine not exceeding ten
thousand dollars ($10,000) per violation, by imprisonment in a county
jail not exceeding one year, or in the state prison, or by both that
fine and imprisonment.
(b) For the purposes of this section, "person" means an
individual, business association, partnership, corporation, limited
liability company, or other legal entity, and an individual acting or
purporting to act for or on behalf of any government or subdivision
thereof, whether federal, state, or local, but excludes an individual
known by all parties to a confidential communication to be
overhearing or recording the communication.
(c) For the purposes of this section, "confidential communication"
means any communication carried on in circumstances as may
reasonably indicate that any party to the communication desires it to
be confined to the parties thereto, but excludes a communication
made in a public gathering or in any legislative, judicial,
executive, or administrative proceeding open to the public, or in any
other circumstance in which the parties to the communication may
reasonably expect that the communication may be overheard or
recorded.
(d) Except as proof in an action or prosecution for violation of
this section, evidence obtained as a result of eavesdropping upon or
recording a confidential communication in violation of this section
is not admissible in any judicial, administrative, legislative, or
other proceeding.
(e) This section does not apply (1) to any public utility engaged
in the business of providing communications services and facilities,
or to the officers, employees, or agents thereof, if the acts
otherwise prohibited by this section are for the purpose of
construction, maintenance, conduct, or operation of the services and
facilities of the public utility, (2) to the use of any instrument,
equipment, facility, or service furnished and used pursuant to the
tariffs of a public utility, or (3) to any telephonic communication
system used for communication exclusively within a state, county,
city and county, or city correctional facility.
(f) This section does not apply to the use of hearing aids and
similar devices, by persons afflicted with impaired hearing, for the
purpose of overcoming the impairment to permit the hearing of sounds
ordinarily audible to the human ear.
SEC. 2. Section 632.01 is added to the Penal Code, to read:
632.01. (a) A person who violates subdivision (a) of Section 632
shall be punished pursuant to subdivision (c) if the person
intentionally discloses or attempts to disclose, or
distributes or attempts to distribute, distributes,
in any manner, in any forum, including, but not limited to,
Internet Web sites and social media, or for any purpose, the contents
of the a confidential communication
with a health care provider that is obtained by that
person in violation of subdivision (a) of Section 632. For purposes
of this subdivision, "social media" means an electronic service or
account, or electronic content, including, but not limited to, videos
or still photographs, blogs, video blogs, podcasts, instant and text
messages, email, online services or accounts, or Internet Web site
profiles or locations.
(b) (1) A person who employs or
directs any person or persons to unlawfully commit any act
aids or abets the commission of an offense described in
subdivision (a) of this section or subdivision (a) of
Section 632 when another party to the confidential
communication is a health care provider shall be
punished pursuant to subdivision (c).
(2) For purposes of this section a person "aids or abets the
commission of an offense" when he or she, with knowledge of the
unlawful purpose of the perpetrator and with the intent or purpose of
committing, facilitating, or encouraging the commission of the
offense, by act or advice, aids, promotes, encourages, or instigates
the commission of the offense.
(c) A violation of subdivision (a) or (b) shall be punished by a
fine not exceeding two thousand five hundred dollars ($2,500) per
violation, or imprisonment in a county jail not exceeding one year,
or in the state prison, or by both that fine and imprisonment. If the
person has previously been convicted of a violation of this section,
the person shall be punished by a fine not exceeding ten thousand
dollars ($10,000) per violation, by imprisonment in a county jail not
exceeding one year, or in the state prison, or by both that fine and
imprisonment.
(d) For purposes of this section, "health care provider" means any
of the following:
(1) A person licensed or certified pursuant to Division 2
(commencing with Section 500) of the Business and Professions Code.
(2) A person licensed pursuant to the Osteopathic Initiative Act
or the Chiropractic Initiative Act.
(3) A person certified pursuant to Division 2.5 (commencing with
Section 1797) of the Health and Safety Code.
(4) A clinic, health dispensary, or health facility licensed or
exempt from licensure pursuant to Division 2 (commencing with Section
1200) of the Health and Safety Code.
(5) An employee, volunteer, or contracted agent of any group
practice prepayment health care service plan regulated pursuant to
the Knox-Keene Health Care Service Plan Act of 1975 (Chapter 2.2
(commencing with Section 1340) of Division 2 of the Health and Safety
Code).
(6) An employee, volunteer, independent contractor, or
professional student of a clinic, health dispensary, or health care
facility or health care provider described in this subdivision.
(7) A professional organization that represents any of the other
health care providers described in this subdivision.
(e) (1) Subdivisions (a) and (b) do not apply to the disclosure or
distribution of a confidential communication pursuant to any of the
following:
(A) Any party as described in Section 633 acting within the scope
of his or her authority overhearing or recording a confidential
communication that he or she may lawfully overhear or record pursuant
to that section.
(B) Any party as described in Section 633.02 overhearing or
recording a confidential communication related to sexual assault or
other sexual offense that he or she may lawfully overhear or record
pursuant to that section, or using or operating a body-worn camera as
authorized pursuant to that section.
(C) A city attorney as described in Section 633.05 overhearing or
recording any communication that he or she may lawfully overhear or
record pursuant to that section.
(D) An airport law enforcement officer recording a communication
received on an incoming telephone line pursuant to Section 633.1.
(E) A party to a confidential communication recording the
communication for the purpose of obtaining evidence reasonably
believed to relate to the commission by another party to the
communication of a crime as specified in Section 633.5.
(F) A victim of domestic violence recording a prohibited
communication made to him or her by the perpetrator pursuant to
Section 633.6.
(G) A peace officer using electronic amplifying or recording
devices to eavesdrop on and record the otherwise confidential oral
communications of individuals within a location when responding to an
emergency situation that involves the taking of a hostage or the
barricading of a location pursuant to Section 633.8.
(2) This section does not affect the admissibility of any evidence
that would otherwise be admissible pursuant to the authority of any
section specified in paragraph (1).
SEC. 3. Section 633.5 of the Penal Code
is amended to read:
633.5. Nothing in Section 631, 632, 632.5, 632.6, or 632.7
prohibits one party to a confidential communication from recording
the communication for the purpose of obtaining evidence reasonably
believed to relate to the commission by another party to the
communication of the crime of extortion, kidnapping, bribery, any
felony involving violence against the person, including, but not
limited to, human trafficking, as defined in Section 231.6, or
a violation of Section 653m. Nothing in Section
Sections 631, 632, 632.5, 632.6, or
632.6, and 632.7 renders do not
render any evidence so obtained inadmissible in a prosecution
for extortion, kidnapping, bribery, any felony involving violence
against the person, including, but not limited to, human
trafficking, as defined in Section 231.6, a violation of
Section 653m, or any crime in connection therewith.
SEC. 3. SEC. 4. No reimbursement is
required by this act pursuant to Section 6 of Article XIII B of the
California Constitution because the only costs that may be incurred
by a local agency or school district will be incurred because this
act creates a new crime or infraction, eliminates a crime or
infraction, or changes the penalty for a crime or infraction, within
the meaning of Section 17556 of the Government Code, or changes the
definition of a crime within the meaning of Section 6 of Article XIII
B of the California Constitution.