BILL NUMBER: AB 1671 AMENDED
BILL TEXT
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
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. The bill
would not apply if the confidential communication is
disclosed solely to law enforcement for investigative purposes.
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 aid and 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,
a new crime, 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) (1) A person who violates
subdivision (a) of Section 632 shall be punished pursuant to
subdivision (c) (b) if the person
intentionally discloses or 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 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.
(2) This section does not apply if the confidential communication
is provided solely to law enforcement for investigative purposes.
(b) (1) A person who aids and abets the commission of an offense
described in subdivision (a) of this section 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 and 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)
(b) 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)
(c) 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)
(d) (1) Subdivisions (a) and (b) do
Subdivision (a) does 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. Sections 631, 632, 632.5, 632.6, and 632.7
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. 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.