A bill on its way to the Governor may not outlaw all disclosures of illegally recorded communications with medical providers.
AB 1671 by Assemblyman Jimmy Gomez (D-Los Angeles) would amend the Penal Code to add:
A person who (has unlawfully recorded a confidential communication with a health care provider) shall be punished . . . . if the person intentionally discloses or distributes, in any manner, in any forum, including, but not limited to, Internet Web sites and social media, or for any purpose, (the contents of the confidential communication). For purposes of this subdivision, “social media” means an electronic service or account, or electronic content, including, but not limited to, videos or still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.
The prescribed punishment is a fine of $2,500 or up to a year’s incarceration or both. A repeat offender can face a $10,000 fine and up to a year behind bars.
AB 1671 is sponsored by Planned Parenthood, which has explained that it
grew out of our unfortunate experience last summer when the Center for Medical Progress published on the internet a series of video recordings it had made surreptitiously at confidential conferences or in private conversations with medical providers. These recordings were manipulated heavily to create a narrative entirely different than the full tapes revealed. They suggested Planned Parenthood had broken the law, although a federal judge and two dozen state investigations have concluded that Planned Parenthood broke no law.
Planned Parenthood has been targeted unjustly as a result of these illegal, heavily edited videotapes, when then served as a catalyst for a malicious smear campaign. Because California's invasion of privacy law only prohibits the taping, but not the distribution or disclosure, CMP was able to publish manipulated snippets of the tapes on the internet and widely disseminate them to legislatures and the press. The harm from these disclosures, as we all experienced, was cataclysmic. Medical providers received death threats, health centers experienced nine times the number of security threats than the previous year, and the resulting vitriol culminated in a shooting in Colorado that left three dead.
The bill originally criminalized not only disclosures by those who made the unlawful recordings but also third parties who distributed the information. The California Newspaper Publishers Association objected that news organizations supplied with recordings made unlawfully by others could not, under the U.S. Supreme Court’s 2001 decision in Bartnicki v. Vopper, 532 U.S. 514, be held criminally liable for publishing the information if it was of sufficient public interest. The bill was then amended to apply only to distribution by the unlawfully recording party, and the publishers then dropped their opposition.
But if Governor Brown signs AB 1671, the resulting law may apply to fewer situations than its supporters may think. As a policy measure it is grossly overinclusive in that it punishes not only disclosure of recorded medically sensitive personal information (the publication of which is already prosecutable) but any communication of any kind whatsoever to or from any “health care provider,” defined to include anyone licensed or certified by the state to engage in any practice related to health—human or animal—as well as volunteers and contractors dealing with health care facilities, and professional groups from the American Medical Association on down.
But the bill is also underinclusive in applying only to disclosure or distribution of illegally recorded material in a “forum, including, but not limited to, Internet Web sites and social media.” A U.S Postal Service mailbox—or the lobby of a newspaper or broadcast station—is not a “forum” of any kind recognized by the law. Black’s online Law Dictionary, for example, defines the term as
A court of justice, or Judicial tribunal; a place of jurisdiction ; a place where a remedy is sought; a place of litigation. 3 Story, 347. In Roman law. The market place, or public paved court, in the city of Rome, where such public business was transacted as the assemblies of the people and the judicial trial of causes, and where also elections, markets, and the public exchange were held.
The statutory terms used to describe a crime are not to be read expansively—quite the contrary, as a matter of due process.
Accordingly, AB 1671 may enact a law addressing the situation that actually injured Planned Parenthood—unlawful recording of a confidential communication followed by publication of the recording by the same party. But it may well not reach either a wrongful recording party’s mailing or even delivering the product to the news media (rather than publishing it), or publication of that product by the press, protected by Bartnicki, if the information is of significant public interest.