UPDATE, September 30, 3:29 p.m.: California Gov. Jerry Brown (D) signed into law AB 1671, which takes effect on January 1, 2017. In a phone interview with Rewire, Beth Parker of Planned Parenthood Affiliates of California called Brown’s signing of the law “a major victory for the health care providers in California and the people that we serve.”
California lawmakers have passed a bill that would make it a crime to distribute secret recordings of health-care providers like the ones an anti-choice front group used in its smear campaign against Planned Parenthood.
The bill, AB 1671, now heads to the desk of California Gov. Jerry Brown (D). It’s unclear whether Brown will sign the measure. A spokesperson for his office said they generally do not comment on pending legislation.
Planned Parenthood Affiliates of California (PPAC) hailed the passage of AB 1671, calling it “necessary to deter the illegal activities of anti-abortion extremists who use illegal tactics to violate the privacy of reproductive health providers.”
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“We’ve obviously thrilled,” Beth Parker, chief legal counsel for PPAC, told Rewire. “We worked with a lot of groups to try to balance the right of privacy, which is extremely important to protect our medical providers, with rights of free speech, and we feel we have accommodated those competing interests and ended up with a bill that will hopefully deter violence and harassment against our medical providers.”
The bill went through several rounds of amendments aimed at easing opposition from civil liberties and media groups, who charged that the legislation was too broad and could sweep up journalists, attorneys, and whistleblowers.
It is already illegal in California to record confidential communications without the consent of all parties involved. California Assemblymember Jimmy Gomez (D-Los Angeles), who introduced AB 1671, told Rewire the measure would address a gap in state law, which bans the distribution of illegally recorded telephone calls but doesn’t apply similar protections to videos.
David Daleiden and his cohorts at an anti-choice front group known as the Center for Medical Progress (CMP) used covertly recorded and deceptively edited videos to claim Planned Parenthood was illegally profiting from fetal tissue donation. While multiple Republican-led federal and state investigations have found no wrongdoing by Planned Parenthood, the organization reported a spike in threats and violence following the videos’ release.
Robert Lewis Dear Jr., who admitted to killing three people at a Colorado Springs Planned Parenthood in a November shooting, appeared to invoke the videos after his arrest, saying he wanted to stop Planned Parenthood from “selling baby parts.”
AB 1671 makes it a crime punishable by up to a year in jail and a $2,500 fine if a person who records a confidential communication with a health-care provider “intentionally discloses or distributes” that recording “in any manner, in any forum … or for any purpose.” The penalties are similar to those already in place for making an illegal recording, but under the new measure, the fines apply to each violation. Repeat offenders could face fines of up to $10,000 per violation.
A key area of concern for opponents of the legislation was the possibility that journalists could face penalties for publishing or broadcasting recordings. The latest draft of the bill specifies that only those who “aid and abet” the creation of the recording are liable for its distribution.
“That made it narrow enough that the media groups went from opposed to neutral,” Gomez told Rewire. “Unless they’re literally helping, funding, or giving equipment to somebody who is going to illegally record a confidential communication, they’re not going to be caught up in this law.”
Media groups have not entirely dropped their criticism.
“We’ve done our best to try to limit the scope of the bill, and as a result of the negotiations, we agreed to remove our opposition to the bill,” Nikki Moore, legal counsel of the California Newspaper Publishers Association, told Rewire. “That being said, I still find it very troubling that the California legislature is going to consider criminalizing speech; they’re going to potentially chill whistleblower activity, and so we certainly don’t support the bill.”
The Los Angeles Times blasted the bill this week in an editorial.
“Make no mistake, this measure would heap more criminal and civil penalties on making a secret recording—an act that’s already prohibited by state law, even when done in the public interest—simply to satisfy an interest group popular among Sacramento Democrats,” the Times editorial board wrote. “In fact, it would further disincentivize potential whistleblowers from recording malfeasance when they witness it—for example, a patient who sees her doctor handing out opioid prescriptions like candy, or a farm worker who catches a veterinarian approving a sick cow for the slaughterhouse.”
The American Civil Liberties Union of California, which opposed earlier drafts of the bill, said it is still reviewing the latest amendments.
CMP is based in California and much of its covert recording happened there. California Attorney General Kamala Harris, who is running for U.S. Senate, has not announced any criminal charges against Daleiden.
“I’m not certain if we’ll see [prosecution of Daleiden in California]. I don’t know where the discussion in the attorney general’s office is on it,” Gomez told Rewire. “In the end it’s still up to the prosecution to determine if they actually have enough evidence to prosecute someone … but we think that this law will help in first deterring [people from] doing these kind of recordings but then actually holding them accountable once they do.”