BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                    AB 1671


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          ASSEMBLY THIRD READING


          AB  
          1671 (Gomez)


          As Amended  May 18, 2016


          Majority vote


           ------------------------------------------------------------------ 
          |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         |                    |
          |                |     |HernŠndez, Holden,    |                    |
          |                |     |Quirk, Santiago,      |                    |
          |                |     |Weber, Wood           |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
           ------------------------------------------------------------------ 


          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