BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 1671| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 1671 Author: Gomez (D), et al. Amended: 8/30/16 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).) AB 1671 Page 2 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 AB 1671 Page 3 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 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. 4)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. 5)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. A person certified under the Health and Safety Code. AB 1671 Page 4 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. 4)Expands the civil action section to provide that any person may bring an action to enjoin and restrain any violation of the chapter on eavesdropping and may in the same action seek damages. 5)Provides that he civil action shall not be construed to affect the uniform single publication act. Comments According to the author: AB 1671 Page 5 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 secrets. 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 result in additional commitments to state prison. The California Department of Corrections and Rehabilitation data AB 1671 Page 6 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 8/30/16) 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 Planned Parenthood Advocates Pasadena and San Gabriel Valley Planned Parenthood Advocacy Project of Los Angeles County AB 1671 Page 7 Planned Parenthood Mar Monte Planned Parenthood Northern California Action Fund Women's Foundation of California OPPOSITION: (Verified8/30/16) American Civil Liberties Union Animal Legal Defense Fund California Broadcasters Association California Catholic Conference Electronic Frontier Foundation 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. / 8/31/16 16:23:16 **** END ****