BILL ANALYSIS                                                                                                                                                                                                    



                                                                    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  








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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



















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