Amended in Senate August 16, 2016

Amended in Senate August 2, 2016

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

(Principal coauthor: Assembly Member Santiago)

(Coauthor: Senator Jackson)

January 15, 2016


An act to amend 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, 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 distribute the contents of the confidential communication without the consent of all parties to the confidential communication unless specified conditions are met.begin insert The bill would not apply if the confidential communicationend insertbegin insert is disclosed solely to law enforcement for investigative purposes.end insert 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. begin deleteThe bill would also make it a crime for any person to aid and abet any person in the commission of those offenses.end delete 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 creatingbegin delete new crimes,end deletebegin insert a new crime,end insert 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
P4    1or recording a confidential communication in violation of this
2section is not admissible in any judicial, administrative, legislative,
3or other proceeding.

4(e) This section does not apply (1) to any public utility engaged
5in the business of providing communications services and facilities,
6or to the officers, employees, or agents thereof, if the acts otherwise
7prohibited by this section are for the purpose of construction,
8maintenance, conduct, or operation of the services and facilities
9of the public utility, (2) to the use of any instrument, equipment,
10facility, or service furnished and used pursuant to the tariffs of a
11public utility, or (3) to any telephonic communication system used
12for communication exclusively within a state, county, city and
13county, or city correctional facility.

14(f) This section does not apply to the use of hearing aids and
15similar devices, by persons afflicted with impaired hearing, for
16the purpose of overcoming the impairment to permit the hearing
17of sounds ordinarily audible to the human ear.

18

SEC. 2.  

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

19

632.01.  

(a) begin insert(1)end insertbegin insertend insert A person who violates subdivision (a) of
20Section 632 shall be punished pursuant to subdivisionbegin delete (c)end deletebegin insert (b)end insert if
21the person intentionally discloses or distributes, in any manner, in
22any forum, including, but not limited to, Internet Web sites and
23social media, or for any purpose, the contents of a confidential
24communication with a health care provider that is obtained by that
25person in violation of subdivision (a) of Section 632. For purposes
26of this subdivision, “social media” means an electronic service or
27account, or electronic content, including, but not limited to, videos
28or still photographs, blogs, video blogs, podcasts, instant and text
29messages, email, online services or accounts, or Internet Web site
30profiles or locations.

begin insert

31
(2) This section does not apply if the confidential communication
32is provided solely to law enforcement for investigative purposes.

end insert
begin delete

33(b) (1) A person who aids and abets the commission of an
34offense described in subdivision (a) of this section when another
35party to the confidential communication is a health care provider
36shall be punished pursuant to subdivision (c).

37(2) For purposes of this section a person “aids and abets the
38commission of an offense” when he or she, with knowledge of the
39unlawful purpose of the perpetrator and with the intent or purpose
40of committing, facilitating, or encouraging the commission of the
P5    1offense, by act or advice, aids, promotes, encourages, or instigates
2the commission of the offense.

3(c)

end delete

4begin insert(b)end insert A violation of subdivision (a)begin delete or (b)end delete shall be punished by a
5fine not exceeding two thousand five hundred dollars ($2,500) per
6violation, or imprisonment in a county jail not exceeding one year,
7or in the state prison, or by both that fine and imprisonment. If the
8person has previously been convicted of a violation of this section,
9the person shall be punished by a fine not exceeding ten thousand
10dollars ($10,000) per violation, by imprisonment in a county jail
11not exceeding one year, or in the state prison, or by both that fine
12and imprisonment.

begin delete

13(d)

end delete

14begin insert(c)end insert For purposes of this section, “health care provider” means
15any of the following:

16(1) A person licensed or certified pursuant to Division 2
17(commencing with Section 500) of the Business and Professions
18Code.

19(2) A person licensed pursuant to the Osteopathic Initiative Act
20or the Chiropractic Initiative Act.

21(3) A person certified pursuant to Division 2.5 (commencing
22with Section 1797) of the Health and Safety Code.

23(4) A clinic, health dispensary, or health facility licensed or
24exempt from licensure pursuant to Division 2 (commencing with
25Section 1200) of the Health and Safety Code.

26(5) An employee, volunteer, or contracted agent of any group
27practice prepayment health care service plan regulated pursuant
28to the Knox-Keene Health Care Service Plan Act of 1975 (Chapter
292.2 (commencing with Section 1340) of Division 2 of the Health
30and Safety Code).

31(6) An employee, volunteer, independent contractor, or
32professional student of a clinic, health dispensary, or health care
33facility or health care provider described in this subdivision.

34(7) A professional organization that represents any of the other
35health care providers described in this subdivision.

begin delete

36(e)

end delete

37begin insert(d)end insert (1) begin deleteSubdivisions (a) and (b) doend deletebegin insert Subdivision (a) doesend insert not
38apply to the disclosure or distribution of a confidential
39communication pursuant to any of the following:

P6    1(A) Any party as described in Section 633 acting within the
2scope of his or her authority overhearing or recording a confidential
3communication that he or she may lawfully overhear or record
4pursuant to that section.

5(B) Any party as described in Section 633.02 overhearing or
6recording a confidential communication related to sexual assault
7or other sexual offense that he or she may lawfully overhear or
8record pursuant to that section, or using or operating a body-worn
9camera as authorized pursuant to that section.

10(C) A city attorney as described in Section 633.05 overhearing
11or recording any communication that he or she may lawfully
12overhear or record pursuant to that section.

13(D) An airport law enforcement officer recording a
14communication received on an incoming telephone line pursuant
15to Section 633.1.

16(E) A party to a confidential communication recording the
17communication for the purpose of obtaining evidence reasonably
18believed to relate to the commission by another party to the
19communication of a crime as specified in Section 633.5.

20(F) A victim of domestic violence recording a prohibited
21communication made to him or her by the perpetrator pursuant to
22Section 633.6.

23(G) A peace officer using electronic amplifying or recording
24devices to eavesdrop on and record the otherwise confidential oral
25communications of individuals within a location when responding
26to an emergency situation that involves the taking of a hostage or
27the barricading of a location pursuant to Section 633.8.

28(2) This section does not affect the admissibility of any evidence
29that would otherwise be admissible pursuant to the authority of
30any section specified in paragraph (1).

31

SEC. 3.  

Section 633.5 of the Penal Code is amended to read:

32

633.5.  

Nothing in Section 631, 632, 632.5, 632.6, or 632.7
33prohibits one party to a confidential communication from recording
34the communication for the purpose of obtaining evidence
35reasonably believed to relate to the commission by another party
36to the communication of the crime of extortion, kidnapping,
37bribery, any felony involving violence against the person,
38including, but not limited to, human trafficking, as defined in
39Section 231.6, or a violation of Section 653m. Sections 631, 632,
40632.5, 632.6, and 632.7 do not render any evidence so obtained
P7    1inadmissible in a prosecution for extortion, kidnapping, bribery,
2any felony involving violence against the person, including, but
3not limited to, human trafficking, as defined in Section 231.6, a
4violation of Section 653m, or any crime in connection therewith.

5

SEC. 4.  

No reimbursement is required by this act pursuant to
6Section 6 of Article XIII B of the California Constitution because
7the only costs that may be incurred by a local agency or school
8district will be incurred because this act creates a new crime or
9infraction, eliminates a crime or infraction, or changes the penalty
10for a crime or infraction, within the meaning of Section 17556 of
11the Government Code, or changes the definition of a crime within
12the meaning of Section 6 of Article XIII B of the California
13Constitution.



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