Jan. 19, 2017
AB 1671: Secret recordings banned
Adds criminal and civil penalties for those who secretly record or distribute conversations with health care providers. By Dean Cheley
Dean Cheley
Donaldson & Callif
400 S Beverly Dr #400
Beverly Hills , CA 90212
Phone: (310) 277-8394
Fax: (310) 277-4870
Email: dean@donaldsoncallif.com
UC Berkeley Boalt Hall
Back in October, Gov. Jerry Brown signed Assembly Bill 1671 into law, which adds on criminal and civil penalties on those who secretly record or distribute conversations with health care providers.
Although the final bill culled most of the bill's bite, any person who records or aids and abets in the distribution of a confidential recording with a health care provider could face up to $2,500 in additional fines per violation and up to a year of imprisonment. Previous iterations of the bill stated that any person who participated in the dissemination could face similar consequences, even if not involved in the original recording. California's two-party consent wiretapping statute as well as general privacy laws already create criminal liability for violations of confidential communications, AB 1671 expands the scope to increase potential liability.
The so-called "Planned Parenthood" bill is a misguided response by lawmakers to the Center for Medical Progress' intrusive undercover video campaign against Planned Parenthood. The law imposes swift punishment on those who record or distribute confidential interactions with health care providers. Regardless of any sympathies for Planned Parenthood, the unintended consequences of the bill overshadow its value. The law has been criticized for chilling free speech and investigative reporting because it essentially duplicates criminal penalties for a person who violates California eavesdropping laws but specifically targets the health care industry. There is no legitimate governmental reason for singling-out disclosure of all health care provider communications for special criminal sanctions, making the bill vulnerable not only on first amendment grounds but also on equal protection grounds. It also sets dangerous precedent for punishing communication of other preferred professions or industries such as law enforcement, pharmaceutical producers, or the gas and gun industry.
While the threat of liability will no doubt discourage malicious campaigns, legitimate newsgathering investigations will unquestionably feel the chill as well. The long-established right to report newsworthy information, derived from the First Amendment, faces increased scrutiny as privacy rights become more at issue in our information driven society. However well intentioned, bills such as AB 1671 and the other industry specific measures that will attempt to follow its precedent run the risk of chilling legitimate news reporting efforts.
We consider the effect on our clients, many who are documentary and investigative filmmakers. The law tacks additional criminal and civil penalties on whistleblowers who make secret recordings, even when done in the public interest. As an LA Times opinion stated, this could include "a patient who records her doctor handing out opioid prescriptions like candy, or a farm worker who catches a veterinarian approving a sick cow for the slaughterhouse."
Documentaries provide valuable investigative journalism to the public in a way that inspires discussion and change. Such laws as AB 1671 are simply proxies for unconstitutional content-based regulation of speech and may chill the public's ability to learn about newsworthy events that occur in their community.
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