BILL ANALYSIS Ó
AB 1671
Page 1
Date of Hearing: May 25, 2016
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez, Chair
AB
1671 (Gomez) - As Amended May 18, 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 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
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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.
COMMENTS:
AB 1671
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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
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
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
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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)
319-2081