BILL ANALYSIS                                                                                                                                                                                                    



          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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