BILL ANALYSIS                                                                                                                                                                                                    

                                                                    AB 1671

                                                                    Page  1

          Date of Hearing:   May 25, 2016


                               Lorena Gonzalez, Chair

          1671 (Gomez) - As Amended May 18, 2016

          |Policy       |Public Safety                  |Vote:|5 - 2        |
          |Committee:   |                               |     |             |
          |             |                               |     |             |
          |             |                               |     |             |

          Urgency:  No  State Mandated Local Program:  YesReimbursable:   


          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 with a health care provider, after illegally  
          obtaining it.  Specifically, this bill:  

          1)Provides that a person who illegally records a confidential  
            communication with a health care provider 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  


                                                                    AB 1671

                                                                    Page  2

            social media, is guilty of a crime.

          2)Punishes the disclosure or publishing of illegally-recorded  
            specified confidential communications as follows:

             a)   For a first offense, 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, 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 prohibition does not apply in specific  
            lawful scenarios, or recordings for the purpose of obtaining  
            evidence of human trafficking. 

          FISCAL EFFECT:

          1)Likely minor fiscal impact to the Department of Corrections  
            and Rehabilitation (CDCR).  If one person were sentenced 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. 



                                                                    AB 1671

                                                                    Page  3

          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 a health care provider with  
            the law on misappropriation of trade secrets."

            This bill criminalizes the distribution of an illegally  
            recorded confidential communication with a health care  
            provider 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  

          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  
            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  


                                                                    AB 1671

                                                                    Page  4

            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.  The Animal Legal Defense Fund (ALDF), made a  
            First Amendment argument to the prior version of this bill,  
            "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."  However, it  
            is not clear if they continue to have these concerns with the  
            more restrictive current version of AB 1671.

          Analysis Prepared by:Pedro Reyes / APPR. / (916)