Assembly bill looks to criminalize distribution of certain recordings

By Carrie Salls | Jun 7, 2016

SACRAMENTO – California Assembly member Jimmy Gomez is sponsoring legislation that would make it illegal to disseminate a recorded conversation in the state if both parties to the conversation have not given their consent, stirring controversy in connection with the bill’s constitutionality.

Planned Parenthood is a proponent of the bill.

It is currently against the law in California to record someone without his or her knowledge.

“California already subjects to civil damages liability any person or organization that secretly records confidential communications of any kind, and such lawsuits can be expensive for alleged violators,” Terry Francke, general counsel for Californians Aware, told the Northern California Record.

However, Francke said the proposed AB 1671 could hinder the dissemination of important information.

“It authorizes unconstitutional punishment of public disclosures by journalists if the conversations recorded by others and delivered to them disclosed matters of genuine public concern,” Francke said.

Francke said freedom of information requests, classified as the pursuit of information held by a government agency, “do not appear to be affected by this bill.”

Still, Francke said AB 1671, as amended on May 18, could have a serious impact on the public’s access to information “if it deterred journalistic organizations from publishing copies of received recordings, made by others, of conversations they had with medical professionals showing the latter to be violating the law in a manner threatening the public.”

The amended bill describes 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.”

In addition to journalists, Francke said those who could be potentially impacted by the bill if it is ultimately enacted include whistle-blowers employed in medical organizations, such as nurses, “who publicized recordings they made of conversations with physicians or surgeons, for example, that documented the latter’s practices which were not only illegal but dangerous to patients’ to public health.”

“It protects the most dangerous medical professionals from exposure,” Francke said.

Francke said the desire of some individuals to keep their private information from being accessed or shared does not justify the passage of the bill, and the state already has measures in place to protect confidentiality.

According to the amended bill, AB 1671 would take the existing law beyond the requirement for obtaining the consent of all recorded parties, by also making it a crime for a person who unlawfully eavesdrops upon or records a confidential communication with a health care provider “to intentionally disclose, or attempt to disclose, or to intentionally distribute, or attempt to distribute, disclose or distribute the contents of a the confidential communication without the consent of all parties to the confidential communication unless specified conditions are met.”

Violators would be subject to a fine of up to $2,500 or imprisonment in a county jail for up to a year or in the state prison for 16 months to two or three years for first offenses. The fine would be increased to up to $10,000 for subsequent violations.

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