BILL ANALYSIS Ó
AB 1671
Page 1
Date of Hearing: April 19, 2016
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
1671 (Gomez) - As Amended April 12, 2016
As Proposed to be Amended in Committee
SUMMARY: Makes it a crime to intentionally disclose,
distribute, or attempt to disclose or distribute, in any manner,
and for any purpose, the contents of a confidential
communication after illegally obtaining it. Specifically, this
bill:
1)Provides that a person who illegally records a confidential
communication and then intentionally discloses or attempts to
disclose, or distributes or attempts to distribute, its
contents in any manner, in any form, including but not limited
to Internet Web sites and social media, is guilty of a crime.
2)Provides that a person who employs or directs another person
to unlawfully record a confidential communication, or to use
or disclose that communication shall also face criminal
liability.
3)Punishes the disclosure or publishing of illegally recorded
confidential communications, or the aiding and abetting
thereof, as follows:
a) For a first offense, the punishment is a fine not
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exceeding $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; and
b) For a second or subsequent conviction, the punishment is
a fine not exceeding $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.
4)Defines "social media" as "an electronic service or account,
or electronic content, including, but not limited to, videos
or still photographs, blogs, video blogs, podcasts, instant
and text messaging, email, online services or accounts, or
Internet Web site profiles or locations."
5)Clarifies that the fines for the crimes of illegal recording
of a confidential communication and the use or disclosure of
illegally recorded confidential communications apply per
violation.
EXISTING LAW:
1)Makes it a crime to intentionally and without the consent of
all parties to a confidential communication eavesdrop or
record that confidential communication. (Pen. Code, § 632,
subd. (a).)
2)Punishes eavesdropping or recording confidential
communications as an a fine of up to $2,500, or imprisonment
in the county jail for up to one year, or as a felony with
imprisonment in county jail under Realignment, or both. A
subsequent conviction can result in a fine of up to $10,000
and imprisonment in the state prison. (Pen. Code, § 632,
subd. (a).)
3)Defines "confidential communication" as "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
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reasonably expect that the communication may be overheard or
recorded." (Pen. Code, § 632, subd. (c).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "AB 1671 updates
the law to account for the harm created by broad dissemination
over the internet. It aligns the law on unauthorized
recording of confidential communications with the law on
misappropriation of trade secrets. And it aligns California
law with the law of other states that prohibit interception
and disclosure of confidential wire, oral, or electronic
communications."
2)First Amendment Issues: The First Amendment gives the free
press the protection it must have to fulfill its essential
role in democracy. (New York Times Co. v. United States
(1971) 403 U.S. 713, 717.) Accordingly, "prior restraints on
speech and publication are the most serious and the least
tolerable infringement on First Amendment rights." (Nebraska
Press Assn. v. Stuart (1976) 427 U.S. 539, 559.) "The damage
can be particularly great when the prior restraint falls upon
the communication of news and commentary on current events."
(Ibid.)
In Bartniki v. Vopper (2001) 532 U.S. 514, the United States
Supreme Court held that the First Amendment provides
protection to speech that discloses the contents of an
illegally intercepted communication by parties who did not
participate in the illegal interception.
In Bartniki, an unknown person illegally recorded a phone call
between two union leaders about a teachers' strike. Some
journalists obtained the recording and then published the
contents of the conversation. The labor leaders sued the
journalists under federal and state eavesdropping statutes.
(Id. at pp. 518-519.) The Supreme Court relieved the
journalists of liability. The Court noted that the parties
who made the disclosure to the public were not involved in the
illegal interception. Additionally, the media defendants
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lawfully obtained the tapes even though they knew the
information was itself illegally intercepted. (Id. at pp.
524-525.) The Court also emphasized that the defendants
published truthful information about a matter of public
importance. (Id. at p. 525.) The Court concluded, "a
stranger's illegal conduct does not suffice to remove the
First Amendment shield from speech about a matter of public
concern. (Id. at p. 535.)
This bill imposes criminal liability on a person who employs or
directs another to unlawfully record a confidential
communication, or on the subsequent distribution of that
unlawful recording. Does this leave the media vulnerable to
prosecution for distributing or reporting on the illegally
recorded communication? Should there be an explicit exception
for the media and for whistleblowers?
3)Double Punishment: Penal Code section 654 provides "An act or
omission that is punishable in different ways by different
provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but
in no case shall the act or omission be punished under more
than one provision." The purpose of the statute "is to ensure
that a defendant's punishment is commensurate with his
culpability and that he is not punished more than once for
what is essentially one criminal act." (People v. Kwok (1998)
63 Cal.App.4th 1236, 1252.)
Although on its face section 654 precludes multiple punishments
for a single act or omission, case law also applies it to an
indivisible course of conduct. (People v. Deloza (1998) 18
Cal.4th 585, 591.) "'Whether a course of criminal conduct is
divisible and therefore gives rise to more than one act within
the meaning of section 654 depends on the intent and objective
of the actor. If all of the offenses were incident to one
objective, the defendant may be punished for any one of such
offenses but not for more than one.' (Neal v. State of
California (1960) 55 Cal.2d 11, 19.)" (People v. Kwok, supra,
63 Cal.App.4th at p. 1253.) "Whether the acts of which a
defendant has been convicted constitute an indivisible course
of conduct is a question of fact for the trial court." (Id. at
pp. 1252-1253.)
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This bill criminalizes the distribution of an illegally recorded
confidential communication by the person who made the illegal
recording. Arguably, much of the time, the intent and
objective of a person who records a confidential communication
would be to distribute that recording to others.
Nevertheless, there can be cases in which there was no intent
to disclose or when that intent was formed at a later place in
time such that it there was a divisible course of conduct.
This bill, as proposed to be amended, does not require multiple
punishment for the act of illegally recording and for the
illegal distribution stemming from that act. However, in the
appropriate case, depending on the facts and circumstances,
the defendant might be punished for both offenses.
4)Argument in Support: According to Planned Parenthood, the
sponsor of this bill, "This bill will amend California's
invasion of privacy law (Penal Code §§630-638.53), which
currently prohibits the distribution or disclosure of illegal
taped conversations.
"This bill grew out of our unfortunate experience last summer
when the Center for Medical Progress published on the internet
a series of video recordings it had made surreptitiously at
confidential conferences or in private conversations with
medical providers. These recordings were manipulated heavily
to create a narrative entirely different than the full tapes
revealed. They suggested Planned Parenthood had broken the
law, although a federal judge and two dozen state
investigations have concluded that Planned Parenthood broke no
law.
"Planned Parenthood has been targeted unjustly as a result of
these illegal, heavily edited videotapes, when then served as
a catalyst for a malicious smear campaign. Because
California's invasion of privacy law only prohibits the
taping, but not the distribution or disclosure, CMP was able
to publish manipulated snippets of the tapes on the internet
and widely disseminate them to legislatures and the press.
The harm from these disclosures, as we all experienced, was
cataclysmic. Medical providers received death threats, health
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centers experienced nine times the number of security threats
than the previous year, and the resulting vitriol culminated
in a shooting in Colorado that left three dead.
"The bill is modeled after similar statutes in other states that
extend penalties to use and disclosure as well as taping
without consent. In addition, it follows the way penalties
work for misappropriation of trade secrets, another statutory
scheme that penalizes unauthorized disclosure of confidential
information. This bill would strengthen the existing law and
align California's law with other states. It would create
further deterrents to protect the privacy rights of California
citizens and allow those damaged by the disclosures greater
recourse for the harm caused."
5)Arguments in Opposition:
a) According to the California Newspaper Publishers
Association, "Laws that restrict speech based on content
must be narrowly tailored to serve a compelling government
interest. As proposed, AB 1671 is a content-based
regulation that is overbroad, vague, and would have a
chilling effect on the First Amendment and newsgathering
activity.
"Consider this example: A whistleblower unlawfully records a
conversation documenting a wealthy developer bribing a
government official. The whistleblower discloses that
information to a reporter who regularly covers the affected
public agency. The reporter then emails the recording to
her editor and the newsroom lawyer to see if they should
report on the recording. It's a matter of high public
concern, and the newspaper posts the video online with a
story reporting the facts.
"Under current law, there is one violation of law-the
unlawful recording. Under the new criminal law proposed by
AB 1671, the reporter, editor, lawyer, and newspaper
publisher could all be prosecuted for 'permitting' or
'causing to be done' the distribution of this recording
that depicts a matter of high public concern.
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"Most troubling, this proposal contains no intent
requirement. The reporter would be liable for a violation
of proposed § 632 .01 whether or not the she knows the
recording was illegally made. This strict liability
standard would have egregious results, which exemplifies
the overbroad nature of this proposal.
"The Supreme Court squarely addressed this scenario in
Bartnicki v. Vopper, which involved the repeated disclosure
of an illegally intercepted conversation by a newspaper
that did not participate in the act of unlawful
interception. The Court overturned a Pennsylvania statute
that criminalized the distribution of an illegally recorded
conversation as an unconstitutional restraint on speech,
noting that the 'naked prohibition against disclosures' can
be 'fairly characterized as a regulation of pure speech.'
"Furthermore, this law would unfairly disadvantage a
California journalist from reporting on issues within the
state that other media across the country is permitted to
cover, and which may have been viewed by millions of
people. This constitutes an unlawful prior restraint and is
patently unconstitutional.
"AB 1671 seeks to criminalize the exchange of information. It
exposes the media and individuals alike to criminal
penalties for simply pushing the send button on an email.
And it ties the hands of California journalists whose job
is to report on issues of public concern.
"Newspapers are not in the business of conspiring with others
to commit crimes, but they are in the business of reporting
facts. As framed, this bill would substantially impair a
newspaper's ability to report facts, and overwhelmingly
chill readers' ability to understand the basics about
newsworthy events that occur in their communities."
b) According to the Animal Legal Defense Fund (ALDF), "For
nearly four decades ALDF has worked within the legal system
to protect the lives and advance the interests of animals.
ALDF accomplishes this work by strengthening anticruelty
provisions and assisting prosecutors in their enforcement,
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bringing civil litigation to enforce civil laws and
regulations that govern the humane treatment of animals and
protect the environment and the public health, and by
submitting regulatory filings or otherwise working with
local, state, and federal agencies to ensure the proper
protection of animals, the environment, and the public
health.
"To accomplish these goals, ALDF-like many similarly
situated nonprofits-both conducts and relies upon
undercover investigations. Such investigations are
frequently the only way the public can ascertain the true
nature of business practices that exploit animals, pollute
the environment, and threaten the public health. We use the
information obtained during undercover investigations to
file lawsuits, to petition government agencies to bring
enforcement actions or to improve their regulations, to
seek criminal prosecutions, and otherwise to generate
important public discourse on matters of great public
concern. So important is our ability to obtain and to
utilize such information that ALDF has filed no fewer than
three federal lawsuits against states that have sought to
criminalize the collecting and/or use of information about
agricultural practices. Indeed, we have already won one
such lawsuit, against the State of Idaho, on the basis that
their 'Ag-Gag' law violates the First Amendment and
violates the equal protection clause of the Fourteenth
Amendment.
"As a result of the public good that these undercover
investigations accomplish, ALDF opposes A.B. 1671, which
would create new liability not only for this organization
but for many similarly situated public interest
organizations and journalists. The chilling effect on
journalism and public discourse will be substantial and
almost certainly in violation of the First Amendment's
specific protection for speech and activity in preparation
of speech."
REGISTERED SUPPORT / OPPOSITION:
Support
AB 1671
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Planned Parenthood Affiliates of California (Sponsor)
California Women's Law Center
Community Action Fund, Planned Parenthood Orange & San
Bernardino Co.
Planned Parenthood Action Fund of the Pacific Southwest
Planned Parent Action Fund of Santa Barbara, Venture & San Luis
Obispo Co.
Planned Parenthood Advocacy Project Los Angeles Co.
Planned Parenthood Advocates Pasadena & San Gabriel Valley
Planned Parenthood Mar Monte
Planned Parenthood Northern California Action Fund
Opposition
Animal Legal Defense Fund
California Broadcasters Association
California Newspaper Publishers Association
Electronic Frontier Foundation
Motion Picture Association of America, Inc.
The Media Coalition
Analysis Prepared
by: Sandy Uribe / PUB. S. / (916) 319-3744