BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1671 Hearing Date: June 28, 2016
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|Author: |Gomez |
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|Version: |May 18, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|MK |
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Subject: Confidential Communications: Disclosure
HISTORY
Source: Planned Parenthood Affiliates of California
Prior Legislation:None known
Support: American Congress of Obstetricians and Gynecologists,
District IX California; California Family Heath
Council; California Health Advocates; California
Medical Association; California Women's Law Center;
California Religious Coalition for Reproductive
Choice; Citizens for Choice; Community Action Fund of
Planned Parenthood of Orange and San Bernardino
Counties; National Abortion Federation; Planned
Parenthood Action Fund of the Pacific Southwest;
Planned Parenthood Action Fund of Santa Barbara,
Ventura & San Luis Obispo; Planned Parenthood
Advocates Pasadena and San Gabriel Valley; Planned
Parenthood Advocacy Project of Los Angeles County;
Planned Parenthood Mar Monte; Planned Parenthood
Northern California Action Fund; The Women's
Foundation of California
Opposition:American Civil Liberties Union; Animal Legal Defense
Fund; California Broadcasters Association; California
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Catholic Conference; California Newspaper Publishers
Association; Electronic Frontier Foundation; Media
Coalition, Inc.; Motion Picture Association of
America, Inc.; Radio Television Digital News
Association; Screen Actors Guild-American Federation
of Television and Radio Artists
Assembly Floor Vote: 52 - 26
PURPOSE
The purpose of this bill is to make it a wobbler to
intentionally distribute, or aid and abet the distribution of, a
confidential communication with a health care provider that was
obtained unlawfully.
Existing law makes it a crime to intentionally and without the
consent of all parties to a confidential communication eavesdrop
or record that confidential communication. (Penal Code §632(a).)
Existing law 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 by a felony punishable
by imprisonment in the county jail for 16 months, 2 or 3 years,
or both fine and imprisonment. A subsequent conviction can
result in a fine of up to $10,000 and imprisonment in county
jail or a felony punished by imprisonment in the county jail for
16 months, 2 or 3 years or both fine and imprisonment. (Penal
Code §632(a).)
Existing 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." (Penal Code §632 (c).)
This bill clarifies the prohibition on recording a confidential
communication applies to each violation.
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This bill provides that a person who violates Penal Code 632
shall be punished by a wobbler pursuant to this section if the
person intentionally discloses, or distributes in any manner, in
any forum, including but not limited to, Internet Web Sites and
social media, for any purpose, the contents of a confidential
communication with a health care provider that is obtained by
that person in violation of Penal 632 (a).
This bill provides that for purposes of this subdivision,
"social media" means an electronic service or account or
electronic content including but not limited to, videos or still
photographs, blogs video blogs, podcasts, instant and text
messages, email, online services or accounts, or Internet Web
Site profiles or locations.
This bill provides that a person who aids or abets the
commission of disclosing, distributing, etc. the unauthorized
recording of a confidential communication when another party to
the confidential communication is a health care provider is
subject to a wobbler.
This bill provides that for these purposes a person "aids or
abets the commission of an offense" when he or she, with
knowledge of the unlawful purpose of the perpetrator and with
the intent to 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.
This bill provides that a violation of this section shall be
punished by a fine not exceeding $2,500 per violation or
imprisonment in the county jail for one year or as a felony
punishable in county jail for 16 months, 2 and 3 years if the
person has a previous conviction then the fine is increased to
$10,000.
This bill provides that for purposes of this section "health
care provider" means any of the following:
A person licensed or certified under the Business and
Professions Code.
A person licensed pursuant to the Osteopathic Initiative
Act or the Chiropractic Ac.
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A clinic, health dispensary or health facility licensed
or exempt from licensure under the Health and Safety Code.
A person certified under the Health and Safety Code.
An employee, volunteer, or contracted agent of any group
practice prepayment health care service plan regulated
pursuant to the Health and Safety Code.
An employee, volunteer, independent contractor or
professional student of a clinic, health dispensary, or
health care facility or health care provider.
A professional organization that represents any other
the other health care providers covered in this section.
This bill provides that it does not apply to the disclosure of
distribution of a confidential communication pursuant to other
Penal Code sections that specifically allow the recording of
confidential communications.
This bill provides that it does not affect the admissibility of
any evidence that would otherwise be admissible.
Existing law provides that nothing prohibits one party to a
confidential communication from recording the communication for
the purpose of obtaining evidence reasonably believed to relate
to the commission by another party to the communication of the
crime of extortion, kidnapping bribery any felony involving
violence or a violation of using a phone call to annoy another
and the recording is not made inadmissible by other sections.
(Penal Code § 633.5)
This bill adds human trafficking to the offenses exempted in
Penal Code § 633.5.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
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On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
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is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Existing law authorizes civil and criminal penalties
when confidential communications are taped,
eavesdropped or recorded intentionally and without the
consent of all parties. It was designed to protect the
constitutional right of privacy for the people of
California. The law was enacted before the Internet
and prior to the proliferation of new devices and
eavesdropping techniques that create a serious threat
to the free exercise of personal liberties. Existing
law creates an exception for the use of listening
devices and techniques by law enforcement to
investigate criminal conduct.
In addition, it does not prohibit one party to a
confidential communication from recording the
communication to obtain evidence of commission of
certain serious, enumerated crimes.
Assembly Bill (AB) 1671, authored by Assemblymember
Jimmy Gomez, closes a loophole in current law to
prohibit the intentional disclosure of the contents of
any wire, oral or electronic communication obtained
without the consent of all parties by the party who
taped the confidential communication without consent.
Specifically, 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
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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.
Existing law also imposes civil and criminal penalties
on individuals who willfully disclose the contents of a
telegraphic or telephone message without the consent of
the participants.
2. Each Violation
Existing law generally prohibits the recording of
confidential communications without the consent of all the
parties.
This bill clarifies that the penalties will be applied for
each violation of the offense.
3. Distribution of Illegally Obtained Recording
This bill creates a new wobbler for a person who
intentionally discloses or distributes in any manner though
any forum the contents of a confidential communication with
a health care provider that is obtained in violation of the
prohibitions on recording a confidential communication. The
penalty is the same as it is for illegally recording a
confidential communication: for a first offense a fine up to
$2,5000 and/or up to one year in county jail or, as a
felony, 16 months, 2 or 3years in county jail; for a repeat
offense a fine up to $10,000 and/or up to one year in county
jail or, as a felony, 16 months, 2 or 3years in county jail.
One of the elements of the new offense is that the recording
was obtained "in violation of subdivision (a) of Section
632." Thus, a person could not be punished for both the
recording and the distributing.
4. Aiding or Abetting
In general person aids and abets a crime where he or she intends
that the direct perpetrator commit the crime and does any act
that assists the direct perpetrator in doing so. An aider and
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abettor is guilty of the same crime as the direct perpetrator
and any crime that is a natural and probable consequence of the
crime he or she specifically aided and abetted.
This bill also provides that a person who "aids or abets" the
commission of the offense of distributing an illegally obtained
confidential recording when another party to the confidential
communication is a health care provider is also guilty of the
new wobbler.
This bill should be amended to state aiding and abetting instead
of aiding or abetting since aiding and abetting is a term of art
and any change will just cause confusion.
This provision is not really necessary because a person can
always be charged with aiding and abetting when appropriate and
they are subject to the same penalty as that of the underlying
crime.
5. Distributes
This bill prohibits the distribution of the illegally obtained
confidential recording in any manner. This would apply to
putting the video up on Youtube or giving it to a media outlet
but also could apply to a person giving the video to a
regulatory agency, a lawyer, his or her supervisor. Under this
bill, a person who records his or her employer because he or she
believes that they are in a hostile work environment could not
give the recording to his or her attorney the Department of Fair
Employment and Housing without breaking the law. A person who
believes that their employer is breaking some sort of state of
federal law or regulation could not bring the recording to the
regulatory agency. And if the Department of Fair Employment
and housing or the regulatory agency used the information and
showed it to another agency or person would they be subject to
the aiding or abetting provision? Is this bill potentially
further criminalizing whistleblower activity that the state
would like to promote?
A situation where an illegally obtained recording was edited to
mislead the true content and another party obtains the full
recording and releases it to set the record straight, could also
be a violation of the distribution of this bill.
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6. First Amendment Issues
The First Amendment gives the free press the protection it must
have to fulfill its essential role in democracy. (New York Times
Co. v. United States (1971) 403 U.S. 713, 717.) Accordingly,
"prior restraints on speech and publication are the most serious
and the least tolerable infringement on First Amendment rights."
(Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539, 559.) "The
damage can be particularly great when the prior restraint falls
upon the communication of news and commentary on current
events." (Ibid.)
In Bartniki v. Vopper (2001) 532 U.S. 514, the United States
Supreme Court held that the First Amendment provides protection
to speech that discloses the contents of an illegally
intercepted communication by parties who did not participate in
the illegal interception.
In Bartniki, an unknown person illegally recorded a phone call
between two union leaders about a teachers' strike. Some
journalists obtained the recording and then published the
contents of the conversation. The labor leaders sued the
journalists under federal and state eavesdropping statutes. (Id.
at pp. 518-519.) The Supreme Court relieved the journalists of
liability. The Court noted that the parties who made the
disclosure to the public were not involved in the illegal
interception. Additionally, the media defendants lawfully
obtained the tapes even though they knew the information was
itself illegally intercepted. (Id. at pp. 524- 525.) The Court
also emphasized that the defendants published truthful
information about a matter of public importance. (Id. at p.
525.) The Court concluded, "a stranger's illegal conduct does
not suffice to remove the First Amendment shield from speech
about a matter of public concern. (Id. at p. 535.)
This bill appears as if it would apply to a media organization
that receives a recording that was obtained in violation of
Penal Code Section 632 and would therefore face Constitutional
challenges under Bartniki.
7. Limited to Heath Care Practitioners
The Assembly Appropriations Committee narrowed this bill to
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apply only to recorded conversations where a health care
practitioner was one of the parties. This limitation raises a
number of issues.
First, singling out only this one area of speech could be found
to be on a content-based regulation of speech which is
unconstitutional as the ACLU notes in their opposition:
Nor do we believe it is appropriate to enact statutory
penalties focused on a specific status or occupation,
such as the healthcare providers covered by this bill.
As many courts have noted, such laws are often simply
proxies for unconstitutional content-based regulation
of speech. We note that the bill also has content-based
exemptions in subdivision (e), which make it even more
suspect. Even when distribution of an unlawful
recording is unprotected, the government may not make
content-based distinctions within that category of
unprotected speech, unless "the basis for the content
discrimination consists entirely of the very reason the
entire class of speech at issue is proscribable."
R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992).
The content-based discrimination in this bill does not
consist entirely of the reason the entire class of
speech is proscribed because the bill exempts
recordings of certain topics precisely to encourage
disclosure of those recordings. See id., at 391 (even
if ordinance applies only to unprotected "fighting
words," it was unconstitutional because it was limited
to fighting words "on the basis of race, color, creed,
religion or gender" and thus limited to "specified
disfavored topics.")
We know of no legitimate governmental reason for
singling-out disclosure of all health care provider
communications for special criminal sanctions, making
the bill vulnerable not only on first amendment grounds
but also on equal protection grounds. The same
rationale for punishing communications of some
preferred professions/industries could as easily be
applied to other communications - e.g., by law
enforcement, animal testing labs, gun makers, lethal
injection drug producers, the petroleum industry,
religious sects.
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On the other hand, if the bill is to be limited to conversations
with health care providers, should the conversations be limited
to conversations that actually have to do with health care
services? This bill even includes a professional organization
that represents health care providers, which means it could
include conversations that have to do with health care policy,
or even legislation that has nothing to do with a specific
individual's health care needs.
9. Support
The various Planned Parenthood organizations support this bill
stating:
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 two dozen state
investigations have concluded that Planned Parenthood
broke no law.
Planned Parenthood has been targeted unjustly as a
result of these illegal, heavily edited videotapes,
which then served as a catalyst for a malicious smear
campaign. Because California's Invasion of Privacy law
only prohibits the taping, but not the distribution or
disclosure, CMP was able to publish manipulated
snippets of the tapes on the internet and widely
disseminate them to legislatures and the press. The
harm from these disclosures, as we all experienced, was
cataclysmic. Medical providers received death threats;
health centers experienced nine times the number of
security threats than the previous year; and the
resulting vitriol culminated in a shooting in Colorado
that left three dead.
The bill is modeled after similar statutes in other
states that extend penalties to use and disclosure as
well as taping without consent. In addition, it follows
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the way penalties work for misappropriation of trade
secrets, another statutory scheme that penalizes
unauthorized disclosure of confidential information.
This bill would strengthen the existing law and align
California's law with other states. It would create
further deterrents to protect the privacy rights of
California citizens and allow those damaged by the
disclosures greater recourse for the harm caused.
The American Congress of Obstetricians and Gynecologists
also support this bill stating:
This bill grew out of the 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.
Because California's Invasion of Privacy law only
prohibits the taping, but not the distribution or
disclosure, CMP was able to publish manipulated
snippets of the tapes on the internet and widely
disseminate them to legislatures and the press. The
harm from these disclosures, as we all experienced, was
cataclysmic. Medical providers received death threats;
health centers experienced nine times the number of
security threats than the previous year; and the
resulting vitriol culminated in a shooting in Colorado
that left three dead.
10. Opposition
The California Newspaper Publishers Association opposes this
bill stating:
First Amendment scholars and lawyers agree across the
board that this bill is presumptively unconstitutional
- a content based restriction subject to strict
scrutiny. Because of this, the bill is subject to a
facial challenge on the day of enactment.
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Recently, a broadcast station in the East Bay reported
on "inhumane" conditions in an Alameda psychiatric
emergency room. The reporting was based on leaked video
recorded by a hidden camera. This footage substantiated
the claims made by the information's source, and was
used in the news report with appropriate steps to
protect patient privacy. But use and distribution of
this video would likely be unlawful under AB 1671.
Newspapers are not in the business of conspiring with
others to commit crimes, but they are in the business
of reporting facts. As framed, this bill would subject
a journalist or publisher involved in the distribution
of content to criminal liability for aiding and
abetting a person who makes an illegal recording. This
is inconsistent with Supreme Court case law, and
establishes a public policy that goes against
long-standing principles of free speech that this
Legislature has protected vigorously.
As framed, this legislation will substantially impair a
newspaper's ability to report facts, and overwhelmingly
chill readers' ability to understand the basics about
newsworthy events that occur in their communities.
The Motion Picture Association of America, Inc. also opposes
this bill stating:
By singling out some type of speech for punishment
(confidential communications with a health care
provider) and exempting other types of speech from
prosecution (confidential communications about domestic
violence or human trafficking), the bill would likely
be found to be a content based regulation of speech and
subject to a strict scrutiny analysis by the Courts.
The Supreme Court has long held that laws that target
speech based on its communicative content are
presumptively unconstitutional, Simon & Schuster, Inc.
v. N.Y. Crime Victims Bd, 502 U.S. 105 (1991).
Government need not prefer one viewpoint over an
opposing perspective in order for a law to be found to
be an impermissible content-based restriction of
speech. "[A] speech regulation targeted at specific
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subject matter is content based even if it does not
discriminate among viewpoints within the subject
matter." Reed v. Town of Gilbert, Slip Opinion No.
13-502, at 12.
As a practical matter, the bill poses challenges for
the work of news organizations, as well as filmmakers.
A reporter pursuing a story about child abuse may want
to rely on a source that has a recorded confidential
communication involving a health care institution or
provider. A filmmaker working on a film about one of
the exempt subjects, such as human trafficking, may
come across a confidential communication involving a
health care provider that would be relevant to the
story. In both cases the news reporter and filmmaker
are at risk of prosecution if they proceed with their
work and disseminate a recorded confidential
communication. In addition, the bill will chill any
reporting about matters that may involve health care
institutions or provider, such as elder abuse, medical
malpractice or hospital irregularities, where the
reporting relies on a source who may have an illegally
recorded confidential communication.
In its attempt to criminalize the distribution or
disclosure of confidential communication, the bill also
contravenes a Supreme Court case involving an illegally
recorded conversation. In Bartnicki v. Vopper, 532
U.S. 514 (2001), the Supreme Court found that the
disclosure of an illegally intercepted conversation
regarding a public issue was protected by the First
Amendment.
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