BILL ANALYSIS Ó
AB 1671
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Date of Hearing: May 4, 2016
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez, Chair
AB
1671 (Gomez) - As Amended April 25, 2016
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Urgency: No State Mandated Local Program: YesReimbursable:
No
SUMMARY:
This bill 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
AB 1671
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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 websites and social media, is guilty of a crime.
2)Punishes the disclosure or publishing of illegally recorded
confidential communications, or the directs a person to do, as
follows:
a) For a first offense, the punishment is a fine not
exceeding $2,500 per violation and/or imprisonment in a
county jail not exceeding one year or state prison.
b) For a second or subsequent conviction, the punishment is
a fine not exceeding $10,000 per violation and/or
imprisonment for up to a year in a county jail or state
prison.
3)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.
FISCAL EFFECT:
1)Likely minor fiscal impact to the Department of Corrections
and Rehabilitation (CDCR). If one person were sentence to
state prison, the annual cost to CDCR would be approximately
$29,000 per year.
2)Unknown nonreimbursable costs for incarceration, offset to a
degree by increased fine revenue. To the extent the crime is
treated as a misdemeanor, the cost for incarceration would be
minor, but if it is treated as a felony, and the time is
served in county jail, the cost could be moderate.
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COMMENTS:
1)Purpose. 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."
This bill criminalizes the distribution of an illegally
recorded confidential communication by the person who made the
illegal recording.
2)Background. Current law 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 reasonably expect that the
communication may be overheard or recorded. Current law makes
it a crime to intentionally, and without the consent of all
parties to a confidential communication, eavesdrop or record
that confidential communication. Current law punishes
eavesdropping or recording confidential communications as a
fine of up to $2,500 and/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 state
prison.
3)Support: According to Planned Parenthood, the sponsor of this
bill, "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
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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. ? The bill is modeled after similar
statutes in other states that extend penalties to use and
disclosure as well as taping without consent.
4)Opposition. 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. The Animal
Legal Defense Fund (ALDF), also makes the First Amendment
argument, "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.
Analysis Prepared by:Pedro Reyes / APPR. / (916)
319-2081
AB 1671
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