BILL ANALYSIS Ó
AB 1671
Page 1
ASSEMBLY THIRD READING
AB
1671 (Gomez)
As Amended May 18, 2016
Majority vote
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Public Safety |5-2 |Jones-Sawyer, Lopez, |Melendez, Lackey |
| | |Low, Quirk, Santiago | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Appropriations |14-6 |Gonzalez, Bloom, |Bigelow, Chang, |
| | |McCarty, Bonta, |Gallagher, Jones, |
| | |Calderon, Daly, |Obernolte, Wagner |
| | |Eggman, Eduardo | |
| | |Garcia, Roger | |
| | |Hernández, Holden, | |
| | |Quirk, Santiago, | |
| | |Weber, Wood | |
| | | | |
| | | | |
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SUMMARY: Makes it a crime to intentionally disclose or
distribute, in any manner, and for any purpose, the contents of
a confidential communication with a health care provider after
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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 distributes 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 aids and abets another person to
intentionally disclose or distribute an unlawfully recorded
confidential communication when a party to the communication
is a health care provider shall also face criminal liability.
3)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."
4)Defines "aid and abet" for purposes of this offense as when a
person, "with knowledge of the unlawful purpose of the
perpetrator and with the intent or purpose of committing,
facilitating, or encouraging the commission of the offense, by
act or advice, aids, promotes, encourages, or instigates the
commission of the offense."
5)Punishes the disclosure or publishing of illegally recorded
confidential communications with a health care provider, or
the aiding and abetting thereof, as follows:
a) For a first offense, the punishment is a fine not
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
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prison, or by both that fine and imprisonment.
6)States 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.
7)Defines "health care provider" as any of the following:
a) A person licensed or certified pursuant to specifies
sections of the Business and Professions Code;
b) A person licensed pursuant to the Osteopathic Initiative
Act or the Chiropractic Initiative Act;
c) A person certified pursuant to specified sections of the
Health and Safety Code;
d) A clinic, health dispensary, or health facility licensed
or exempt from licensure pursuant to specified sections of
the Health and Safety Code;
e) An employee, volunteer, or contracted agent of any group
practice prepayment health care service plan regulated
pursuant to the Knox-Keene Health Care Service Plan Act of
1975;
f) An employee, volunteer, independent contractor, or
professional student of a clinic, health dispensary, or
health care facility or health care provider described in
this subdivision; and,
g) A professional organization that represents any of the
other health care providers described in this subdivision.
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8)States that this new crime does not apply to the disclosure or
distribution of a confidential communication under any of the
following:
a) Any party as described in Penal Code section 633 acting
within the scope of his or her authority overhearing or
recording a confidential communication that he or she may
lawfully overhear or record pursuant to that section;
b) Any party as described in Penal Code section 633.02
overhearing or recording a confidential communication
related to sexual assault or other sexual offense that he
or she may lawfully overhear or record pursuant to that
section, or using or operating a body-worn camera as
authorized pursuant to that section;
c) A city attorney overhearing or recording any
communication that he or she may lawfully overhear or
record pursuant to that section;
d) An airport law enforcement officer recording a
communication received on an incoming telephone line;
e) A party to a confidential communication recording the
communication for the purpose of obtaining evidence
reasonably believed to relate to the commission by another
party to the communication of a crime;
f) A victim of domestic violence recording a prohibited
communication made to him or her by the perpetrator; and,
g) A peace officer using electronic amplifying or recording
devices to eavesdrop on and record the otherwise
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confidential oral communications of individuals within a
location when responding to an emergency situation that
involves the taking of a hostage or the barricading of a
location.
9)Adds the crime of human trafficking to the exemption for
recording communications by a party to the communication for
purposes of obtaining evidence when he or she believes the
communication relates to the commission of a crime.
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.
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.
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
reasonably expect that the communication may be overheard or
recorded."
FISCAL EFFECT: According to the Assembly Appropriations
Committee:
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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: 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."
Analysis Prepared by:
Sandy Uribe / PUB. S. / (916) 319-3744 FN:
0003054