BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 1671


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          (Without Reference to File)





          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          1671 (Gomez)


          As Amended  August 30, 2016


          Majority vote


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          |ASSEMBLY:  |52-26 |(May 31, 2016) |SENATE: |26-13 |(August 31,      |
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          Original Committee Reference:  PUB. S.




          SUMMARY:  Makes it a crime to intentionally disclose or  
          distribute, in any manner, and for any purpose, the contents of  
          a confidential communication with a health care provider after  
          illegally obtaining it.  


          The Senate amendments:


          1)State that in order to be found guilty of aiding and abetting  








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            the distribution of an illegal recording, the person must have  
            either made the illegal recording or aided and abetted in its  
            recording.


          2)Provide that a person who brings a civil cause of action can  
            recover damages of $5,000 per violation.
          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.    


          2)Punishes eavesdropping or recording confidential  
            communications as an a fine of up to $2,500, or imprisonment  
            in the county jail for up to one year, or as a felony with  
            imprisonment in county jail under Realignment, or both.  A  
            subsequent conviction can result in a fine of up to $10,000  
            and imprisonment in the state prison.  


          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."  


          AS PASSED BY THE ASSEMBLY, this bill:


          1)Provided that a person who illegally records a confidential  
            communication with a health care provider and then  
            intentionally discloses or distributes its contents in any  
            manner, in any form, including but not limited to Internet Web  
            sites and social media, is guilty of a crime.








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          2)Provided that a person who aids and abets another person to  
            intentionally disclose or distribute an unlawfully recorded  
            confidential communication when a party to the communication  
            is a health care provider shall also face criminal liability.


          3)Defined "social media" as "an electronic service or account,  
            or electronic content, including, but not limited to, videos  
            or still photographs, blogs, video blogs, podcasts, instant  
            and text messaging, email, online services or accounts, or  
            Internet Web site profiles or locations."


          4)Defined "aid and abet" for purposes of this offense as when a  
            person, "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."


          5)Punished the disclosure or publishing of illegally recorded  
            confidential communications with a health care provider, or  
            the aiding and abetting thereof, as follows:


             a)   For a first offense, the punishment is a fine not  
               exceeding $2,500 per violation, or imprisonment in a county  
               jail not exceeding one year, or in the state prison, or by  
               both that fine and imprisonment; and
             b)   For a second or subsequent conviction, the punishment is  
               a fine not exceeding $10,000 per violation, by imprisonment  
               in a county jail not exceeding one year, or in the state  
               prison, or by both that fine and imprisonment.


          6)Stated that the fines for the crimes of illegal recording of a  
            confidential communication and the use or disclosure of  
            illegally recorded confidential communications apply per  
            violation.
          7)Defined "health care provider" as any of the following:  









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             a)   A person licensed or certified pursuant to specifies  
               sections of the Business and Professions Code;
             b)   A person licensed pursuant to the Osteopathic Initiative  
               Act or the Chiropractic Initiative Act;


             c)   A person certified pursuant to specified sections of the  
               Health and Safety Code;


             d)   A clinic, health dispensary, or health facility licensed  
               or exempt from licensure pursuant to specified sections of  
               the Health and Safety Code;


             e)   An employee, volunteer, or contracted agent of any group  
               practice prepayment health care service plan regulated  
               pursuant to the Knox-Keene Health Care Service Plan Act of  
               1975;


             f)   An employee, volunteer, independent contractor, or  
               professional student of a clinic, health dispensary, or  
               health care facility or health care provider described in  
               this subdivision; and,


             g)   A professional organization that represents any of the  
               other health care providers described in this subdivision.   



          8)Stated that this new crime does not apply to the disclosure or  
            distribution of a confidential communication under any of the  
            following:
             a)   Any party as described in Penal Code Section 633 acting  
               within the scope of his or her authority overhearing or  
               recording a confidential communication that he or she may  
               lawfully overhear or record pursuant to that section;
             b)   Any party as described in Penal Code Section 633.02  
               overhearing or recording a confidential communication  








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               related to sexual assault or other sexual offense that he  
               or she may lawfully overhear or record pursuant to that  
               section, or using or operating a body-worn camera as  
               authorized pursuant to that section;


             c)   A city attorney overhearing or recording any  
               communication that he or she may lawfully overhear or  
               record pursuant to that section;


             d)   An airport law enforcement officer recording a  
               communication received on an incoming telephone line;


             e)   A party to a confidential communication recording the  
               communication for the purpose of obtaining evidence  
               reasonably believed to relate to the commission by another  
               party to the communication of a crime;


             f)   A victim of domestic violence recording a prohibited  
               communication made to him or her by the perpetrator; and,


             g)   A peace officer using electronic amplifying or recording  
               devices to eavesdrop on and record the otherwise  
               confidential oral communications of individuals within a  
               location when responding to an emergency situation that  
               involves the taking of a hostage or the barricading of a  
               location.


          9)Added the crime of human trafficking to the exemption for  
            recording communications by a party to the communication for  
            purposes of obtaining evidence when he or she believes the  
            communication relates to the commission of a crime.
          FISCAL EFFECT:  According to the Senate Appropriations  
          Committee:


          1)State prisons:  Potential minor increase in state costs  








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            (General Fund) to the extent the provisions of this bill  
            result in additional commitments to state prison.  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.


          2)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 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. 


          3)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. 


          COMMENTS:  According to the author, "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 the law on misappropriation of  
          trade secrets.  And it aligns California law with the law of  
          other states that prohibit interception and disclosure of  
          confidential wire, oral, or electronic communications."


          Please see the policy committee analysis for a full discussion  
                          of this bill.


          Analysis Prepared by:                                             
                          Sandy Uribe / PUB. S. / (916) 319-3744  FN:  
          0005037









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