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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