Amended in Senate August 30, 2016

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 Sectionsbegin delete 632 and 633.5end deletebegin insert 632, 633.5, and 637.2end 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 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.begin insert The bill would also specify the conduct that constitutes aiding and abetting the commission of those offenses, as specified.end insert 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 a new crime, this bill would impose a state-mandated local program.

begin insert

(2) Existing law authorizes any person who has been injured by a violation of the prohibition on eavesdropping upon or recording confidential communications, and related offenses, to bring an action against the person who committed the violation to enjoin and restrain the violation, as well as to bring an action for monetary damages, as specified.

end insert
begin insert

This bill would provide that the monetary damages be imposed per violation of the above-described provisions.

end insert
begin delete

(2)

end delete

begin insert(3)end insert 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
14636, 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
P4    1an individual known by all parties to a confidential communication
2to be overhearing or recording the communication.

3(c) For the purposes of this section, “confidential
4communication” means any communication carried on in
5circumstances as may reasonably indicate that any party to the
6communication desires it to be confined to the parties thereto, but
7excludes a communication made in a public gathering or in any
8legislative, judicial, executive, or administrative proceeding open
9to the public, or in any other circumstance in which the parties to
10the communication may reasonably expect that the communication
11may be overheard or recorded.

12(d) Except as proof in an action or prosecution for violation of
13this section, evidence obtained as a result of eavesdropping upon
14or recording a confidential communication in violation of this
15section is not admissible in any judicial, administrative, legislative,
16or other proceeding.

17(e) This section does not apply (1) to any public utility engaged
18in the business of providing communications services and facilities,
19or to the officers, employees, or agents thereof, if the acts otherwise
20prohibited by this section are for the purpose of construction,
21maintenance, conduct, or operation of the services and facilities
22of the public utility, (2) to the use of any instrument, equipment,
23facility, or service furnished and used pursuant to the tariffs of a
24public utility, or (3) to any telephonic communication system used
25for communication exclusively within a state, county, city and
26county, or city correctional facility.

27(f) This section does not apply to the use of hearing aids and
28similar devices, by persons afflicted with impaired hearing, for
29the purpose of overcoming the impairment to permit the hearing
30of sounds ordinarily audible to the human ear.

31

SEC. 2.  

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

32

632.01.  

(a) (1) A person who violates subdivision (a) of
33Section 632 shall be punished pursuant to subdivision (b) if the
34person intentionally discloses or distributes, in any manner, in any
35forum, including, but not limited to, Internet Web sites and social
36media, or for any purpose, the contents of a confidential
37communication with a health care provider that is obtained by that
38person in violation of subdivision (a) of Section 632. For purposes
39of this subdivision, “social media” means an electronic service or
40account, or electronic content, including, but not limited to, videos
P5    1or still photographs, blogs, video blogs, podcasts, instant and text
2messages, email, online services or accounts, or Internet Web site
3profiles or locations.

begin insert

4
(2) Notwithstanding any other provision of law, to aid and abet
5a violation of paragraph (1), for the purposes of Section 31, the
6person shall either violate, or aid and abet in a violation of, both
7Section 632 and paragraph (1).

end insert
begin delete

8(2) This section does not apply if the confidential
9communication is provided solely to law enforcement for
10investigative purposes.

end delete

11(b) A violation of subdivision (a) shall be punished by a fine
12not exceeding two thousand five hundred dollars ($2,500) per
13violation, or imprisonment in a county jail not exceeding one year,
14or in the state prison, or by both that fine and imprisonment. If the
15person has previously been convicted of a violation of this section,
16the person shall be punished by a fine not exceeding ten thousand
17dollars ($10,000) per violation, by imprisonment in a county jail
18not exceeding one year, or in the state prison, or by both that fine
19and imprisonment.

20(c) For purposes of this section, “health care provider” means
21any of the following:

22(1) A person licensed or certified pursuant to Division 2
23(commencing with Section 500) of the Business and Professions
24Code.

25(2) A person licensed pursuant to the Osteopathic Initiative Act
26or the Chiropractic Initiative Act.

27(3) A person certified pursuant to Division 2.5 (commencing
28with Section 1797) of the Health and Safety Code.

29(4) A clinic, health dispensary, or health facility licensed or
30exempt from licensure pursuant to Division 2 (commencing with
31Section 1200) of the Health and Safety Code.

32(5) An employee, volunteer, or contracted agent of any group
33practice prepayment health care service plan regulated pursuant
34to the Knox-Keene Health Care Service Plan Act of 1975 (Chapter
352.2 (commencing with Section 1340) of Division 2 of the Health
36and Safety Code).

37(6) An employee, volunteer, independent contractor, or
38professional student of a clinic, health dispensary, or health care
39facility or health care provider described in this subdivision.

P6    1(7) A professional organization that represents any of the other
2health care providers described in this subdivision.

3(d) (1) Subdivision (a) does not apply to the disclosure or
4distribution of a confidential communication pursuant to any of
5the following:

6(A) Any party as described in Section 633 acting within the
7scope of his or her authority overhearing or recording a confidential
8communication that he or she may lawfully overhear or record
9pursuant to that section.

10(B) Any party as described in Section 633.02 overhearing or
11recording a confidential communication related to sexual assault
12or other sexual offense that he or she may lawfully overhear or
13record pursuant to that section, or using or operating a body-worn
14camera as authorized pursuant to that section.

15(C) A city attorney as described in Section 633.05 overhearing
16or recording any communication that he or she may lawfully
17overhear or record pursuant to that section.

18(D) An airport law enforcement officer recording a
19communication received on an incoming telephone line pursuant
20to Section 633.1.

21(E) A party to a confidential communication recording the
22communication for the purpose of obtaining evidence reasonably
23believed to relate to the commission by another party to the
24communication of a crime as specified in Section 633.5.

25(F) A victim of domestic violence recording a prohibited
26communication made to him or her by the perpetrator pursuant to
27Section 633.6.

28(G) A peace officer using electronic amplifying or recording
29devices to eavesdrop on and record the otherwise confidential oral
30communications of individuals within a location when responding
31to an emergency situation that involves the taking of a hostage or
32the barricading of a location pursuant to Section 633.8.

33(2) This section does not affect the admissibility of any evidence
34that would otherwise be admissible pursuant to the authority of
35any section specified in paragraph (1).

36

SEC. 3.  

Section 633.5 of the Penal Code is amended to read:

37

633.5.  

Nothing in Section 631, 632, 632.5, 632.6, or 632.7
38prohibits one party to a confidential communication from recording
39the communication for the purpose of obtaining evidence
40reasonably believed to relate to the commission by another party
P7    1to the communication of the crime of extortion, kidnapping,
2bribery, any felony involving violence against the person,
3including, but not limited to, human trafficking, as defined in
4Section 231.6, or a violation of Section 653m. Sections 631, 632,
5632.5, 632.6, and 632.7 do not render any evidence so obtained
6inadmissible in a prosecution for extortion, kidnapping, bribery,
7any felony involving violence against the person, including, but
8not limited to, human trafficking, as defined in Section 231.6, a
9violation of Section 653m, or any crime in connection therewith.

10begin insert

begin insertSEC. 4.end insert  

end insert

begin insertSection 637.2 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert

11

637.2.  

(a) Any person who has been injured by a violation of
12this chapter may bring an action against the person who committed
13the violation for the greater of the following amounts:

14(1) Five thousand dollarsbegin delete ($5,000).end deletebegin insert ($5,000) per violation.end insert

15(2) Three times the amount of actual damages, if any, sustained
16by the plaintiff.

17(b) Any person may, in accordance with Chapter 3 (commencing
18with Section 525) of Title 7 of Part 2 of the Code of Civil
19Procedure, bring an action to enjoin and restrain any violation of
20this chapter, and may in the same action seek damages as provided
21by subdivision (a).

22(c) It is not a necessary prerequisite to an action pursuant to this
23section that the plaintiff has suffered, or be threatened with, actual
24damages.

begin insert

25
(d) This section shall not be construed to affect Title 4
26(commencing with Section 3425.1) of Part 1 of Division 4 of the
27Civil Code.

end insert
28

begin deleteSEC. 4.end delete
29
begin insertSEC. 5.end insert  

No reimbursement is required by this act pursuant to
30Section 6 of Article XIII B of the California Constitution because
31the only costs that may be incurred by a local agency or school
32district will be incurred because this act creates a new crime or
33infraction, eliminates a crime or infraction, or changes the penalty
34for a crime or infraction, within the meaning of Section 17556 of
35the Government Code, or changes the definition of a crime within
36the meaning of Section 6 of Article XIII B of the California
37Constitution.



O

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