Proposed Bill AB1671 in California is 100% UNCONSTITUTIONAL

This bill is moving forward through the California legislature
It violates freedom of speech. Check it out and lets stop it
Date of Hearing: April 19, 2016
Counsel: Sandy Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

AB
1671 (Gomez) – As Amended April 12, 2016

As Proposed to be Amended in Committee

SUMMARY: Makes it a crime to intentionally disclose,
distribute, or attempt to disclose or distribute, in any manner,
and for any purpose, the contents of a confidential
communication after illegally obtaining it. Specifically, this
bill:

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

2)Provides that a person who employs or directs another person
to unlawfully record a confidential communication, or to use
or disclose that communication shall also face criminal
liability.

3)Punishes the disclosure or publishing of illegally recorded
confidential communications, 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.

4)Defines “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.”

5)Clarifies 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.

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. (Pen. Code, § 632,
subd. (a).)

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. (Pen. Code, § 632,
subd. (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.” (Pen. Code, § 632, subd. (c).)

FISCAL EFFECT: Unknown

COMMENTS:

1)Author’s Statement: 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.”

2)First Amendment Issues: The First Amendment gives the free
press the protection it must have to fulfill its essential
role in democracy. (New York Times Co. v. United States
(1971) 403 U.S. 713, 717.) Accordingly, “prior restraints on
speech and publication are the most serious and the least
tolerable infringement on First Amendment rights.” (Nebraska
Press Assn. v. Stuart (1976) 427 U.S. 539, 559.) “The damage
can be particularly great when the prior restraint falls upon
the communication of news and commentary on current events.”
(Ibid.)

In Bartniki v. Vopper (2001) 532 U.S. 514, the United States
Supreme Court held that the First Amendment provides
protection to speech that discloses the contents of an
illegally intercepted communication by parties who did not
participate in the illegal interception.

In Bartniki, an unknown person illegally recorded a phone call
between two union leaders about a teachers’ strike. Some
journalists obtained the recording and then published the
contents of the conversation. The labor leaders sued the
journalists under federal and state eavesdropping statutes.
(Id. at pp. 518-519.) The Supreme Court relieved the
journalists of liability. The Court noted that the parties
who made the disclosure to the public were not involved in the
illegal interception. Additionally, the media defendants

lawfully obtained the tapes even though they knew the
information was itself illegally intercepted. (Id. at pp.
524-525.) The Court also emphasized that the defendants
published truthful information about a matter of public
importance. (Id. at p. 525.) The Court concluded, “a
stranger’s illegal conduct does not suffice to remove the
First Amendment shield from speech about a matter of public
concern. (Id. at p. 535.)

This bill imposes criminal liability on a person who employs or
directs another to unlawfully record a confidential
communication, or on the subsequent distribution of that
unlawful recording. Does this leave the media vulnerable to
prosecution for distributing or reporting on the illegally
recorded communication? Should there be an explicit exception
for the media and for whistleblowers?

______

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