BILL ANALYSIS Ó
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, |
| | | | | |2016) |
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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
AB 1671
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