Summary 

California Assembly Bill 1671 would make it a crime for a person who has illegally recorded or electronically eavesdropped on a “confidential communication” to disclose or distribute its contents. An existing California law would make it illegal to aid or abet anyone who discloses or distributes the content of the illegally captured “confidential communication.” This could be applied to a publisher who receives a communication from a source or distributes the contents of the communication, even if the publisher did not aid and abet its illegal capture.

Present California law makes it illegal to either listen to a “confidential communication” using an electronic eavesdropping device or record it without consent of all parties to the “confidential communication.” The law 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.”

A violation is punishable by a fine not to exceed $2,500 or up to one year in prison.

Status

On Friday September 30, 2016 Governor Jerry Brown signed into law the bill recently passed with amendments so a person cannot be convicted of aiding and abetting the distribution of an illegally recorded conversation if he or she did not aid and abet the initial illegal recording.

Analysis

The bill is unconstitutional under Bartnicki v. Vopper

In Bartnicki v. Vopper, the Supreme Court ruled that the First Amendment protects a publisher or distributor of an illegally recorded communication from civil liability if that publisher or distributor obtained the recording legally. In the case, the Court considered whether a radio station was liable for damages under state and federal wiretap laws for playing an audio tape of a phone conversation that was illegally recorded using a wiretap. The Court held that First Amendment bars the imposition of civil damages against the broadcaster in part because it did not obtain the recording illegally.

History

  • The bill was introduced[3] on January 15, 2016 and referred to the House Committee on Public Safety.
  • Committee hearing took place on April 21, 2016 where bill was passed with author’s amendments.
  • Referred to committee on appropriations on May 19, 2016.
  • Bill was passed by the House on May 31, 2016 and sent to the Senate.
  • First read in Senate on June 1, 2016 and referred to Committee on Rules for assignment.
  • Referred to Committee on Public Safety on June 9, 2016.
  • There was a hearing in the Senate Committee on Appropriations on August 9, 2016.
  • The House passed the bill with amendments on August 31, 2016.
  • Governor Jerry Brown signed the amended bill into law on September 30, 2016.
  • Media Coalition submitted legal memos on April 14, 2016[1] and on April 29, 2016[2] explaining the constitutional issues with the bill.