BILL ANALYSIS                                                                                                                                                                                                    



          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  







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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  








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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.  








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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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