BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 1671


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          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








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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