BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1671|
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THIRD READING
Bill No: AB 1671
Author: Gomez (D), et al.
Amended: 8/16/16 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 5-2, 6/28/16
AYES: Hancock, Glazer, Leno, Liu, Monning
NOES: Anderson, Stone
SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/11/16
AYES: Lara, Beall, Hill, McGuire, Mendoza
NOES: Bates, Nielsen
ASSEMBLY FLOOR: 52-26, 5/31/16 - See last page for vote
SUBJECT: Confidential communications: disclosure
SOURCE: Planned Parenthood Affiliates of California
DIGEST: This bill makes it a wobbler to intentionally
distribute a confidential communication with a health care
provider that was obtained unlawfully.
ANALYSIS:
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. (Penal Code §632(a).)
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2)Punishes eavesdropping or recording confidential
communications as 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, two or three
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, two or three years or both fine and
imprisonment. (Penal Code §632(a).)
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." (Penal Code §632 (c).)
4)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:
1)Clarifies that the prohibition on recording a confidential
communication applies to each violation.
2)Provides that a person who violates Penal Code §632 shall be
punished by a wobbler pursuant to this section if the person
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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 Code §632 (a).
3)Provides that the section prohibiting distribution does not
apply if the confidential communication is provided solely to
law enforcement for investigative purposes.
4)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.
5)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, two and three years if the person
has a previous conviction then the fine is increased to
$10,000.
6)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 Act.
A clinic, health dispensary or health facility licensed
or exempt from licensure under the Health and Safety Code.
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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 of the
other health care providers covered in this section.
1)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.
2)Provides that it does not affect the admissibility of any
evidence that would otherwise be admissible.
3)Adds human trafficking to the offenses exempted in Penal Code
§633.5.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
According to the Senate Appropriations Committee:
State prisons: Potential minor increase in state costs
(General Fund) to the extent the provisions of this bill
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result in additional commitments to state prison. The
California Department of Corrections and Rehabilitation 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
(Local Funds), offset to a degree by fine revenue, for
additional commitments to county jail. While the number of new
convictions resulting from this bill is unknown, for context,
for every 25 additional convictions impacted by this bill,
costs for a six-month jail sentence 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 bill face constitutional challenges under
the First Amendment.
SUPPORT: (Verified 8/12/16)
Planned Parenthood Affiliates of California (source)
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
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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
Women's Foundation of California
OPPOSITION: (Verified8/12/16)
American Civil Liberties Union
Animal Legal Defense Fund
California Broadcasters Association
California 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
ARGUMENTS IN SUPPORT: 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
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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 secrets.
ARGUMENTS IN 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.
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
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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 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
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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.
ASSEMBLY FLOOR: 52-26, 5/31/16
AYES: Alejo, Arambula, Atkins, Baker, Bloom, Bonilla, Bonta,
Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooper,
Dababneh, Daly, Dodd, Eggman, Frazier, Cristina Garcia,
Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray,
Roger Hernández, Holden, Irwin, Jones-Sawyer, Levine, Lopez,
Low, McCarty, Medina, Mullin, Nazarian, O'Donnell, Quirk,
Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone,
Thurmond, Ting, Weber, Williams, Wood, Rendon
NOES: Achadjian, Travis Allen, Bigelow, Brough, Chang, Chávez,
Dahle, Beth Gaines, Gallagher, Grove, Harper, Jones, Kim,
Lackey, Linder, Maienschein, Mathis, Mayes, Melendez,
Obernolte, Olsen, Patterson, Steinorth, Wagner, Waldron, Wilk
NO VOTE RECORDED: Cooley, Hadley
Prepared by:Mary Kennedy / PUB. S. /
8/16/16 17:47:51
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