BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 1671 (Gomez) - Confidential communications: disclosure
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|Version: August 2, 2016 |Policy Vote: PUB. S. 5 - 2 |
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|Urgency: No |Mandate: Yes |
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|Hearing Date: August 8, 2016 |Consultant: Jolie Onodera |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: AB 1671 would make it an alternate felony-misdemeanor
offense to intentionally distribute, or to aid and abet the
distribution of, a confidential communication with a health care
provider that was obtained unlawfully. This bill would
additionally require the fines specified under the new crime
established and the existing offense of unlawfully eavesdropping
or recording a confidential communication to be imposed on a
per-violation basis.
Fiscal
Impact:
State prisons : Potential minor increase in state costs
(General Fund) to the extent the provisions of this bill
result in additional commitments to state prison. CDCR data
indicates only five commitments to prison over the past two
years related to this offense. To the extent even two felony
convictions occur in any one year, annual costs would increase
by $58,000, based on the estimated contract bed rate of
$29,000 per inmate per year.
County jails : Potential increase in local incarceration costs
AB 1671 (Gomez) Page 1 of
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(Local Funds), offset to a degree by fine revenue, for
additional commitments to county jail. While the number of new
convictions resulting from this measure is unknown, for
context, for every 25 additional convictions impacted by this
measure, costs for a six-month jail sentences could increase
local costs by $550,000 annually.
Potential litigation : Unknown, potentially significant future
costs for litigation (General Fund) to the extent the
provisions of this measure face constitutional challenges
under the First Amendment.
Background: Existing law makes it a crime for a person to intentionally
eavesdrop upon or record a confidential communication with a
recording device without the consent of all parties, unless the
recording is made for the purpose of obtaining evidence
reasonably believed to relate to the commission by another party
of certain crimes including any felony involving violence
against the person making the recording. (Penal Code §§ 632(a),
633.5.)
Under existing law, a violation of the above is an alternate
felony-misdemeanor, punishable by a fine not exceeding $2,500,
or imprisonment in a county jail not exceeding one year, or in
the state prison for 16 months, two years or three years, or by
both that fine and imprisonment. If the person has previously
been convicted of a violation of PC § 632 or other specified
provisions of law, the person shall be punished by a fine not
exceeding $10,000, by imprisonment in a county jail not
exceeding one year, or in the state prison for 16 months, two
years or three years, or by both that fine and imprisonment.
Proposed Law:
This bill would provide that a person who intentionally and
without consent of all parties eavesdrops upon or records a
confidential communication with a recording device shall be
subject to an alternate felony-misdemeanor if the person
intentionally discloses or distributes in any manner, in any
forum, including but not limited to, internet websites and
social media, or for any purpose, the contents of a confidential
communication with a health care provider that is obtained by
that person in violation of PC § 632(a). Additionally, this
AB 1671 (Gomez) Page 2 of
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bill:
Clarifies the prohibition on recording a confidential
communication applies to each violation.
Provides that a person who aids and abets the commission
of disclosing or distributing the unauthorized recording of
a confidential communication when another party to the
confidential communication is a health care provider is
subject to an alternate felony-misdemeanor, as specified.
Provides that for these purposes a person "aids and
abets the commission of an offense" when he or she, 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.
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 state prison for 16 months, two years
or three years. If the person has a previous conviction for
this offense, the fine is increased to $10,000, and may
additionally be subject to one year in county jail, or
state prison for 16 months, two years, or three years.
Provides a definition of "health care provider," as
specified.
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.
Adds human trafficking to the offenses exempted in PC §
633.5.
Related
Legislation: None known.
Staff
Comments: By creating a new alternate felony-misdemeanor, this
bill could result in increased costs for enforcement and
incarceration by state and local agencies.
Staff notes the act of legislating invites litigation.
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Generally, this Committee treats the potential for litigation as
an indirect cost of any bill and does not consider it as part of
the fiscal analysis. However, as noted in the Senate Public
Safety Committee analysis (pp. 6-7, June 28, 2016) of this
measure:
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?.
?The Assembly Appropriations Committee narrowed this
bill to apply only to recorded conversations where a
health care practitioner was one of the parties.
AB 1671 (Gomez) Page 4 of
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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?
Consequently, to the extent this measure contains language that
could be challenged as unconstitutional, this bill could result
in potentially significant costs associated with litigation,
both to the courts and to the Attorney General.
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