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California bill would criminalize distribution of undercover recordings

A California bill penalizing the dissemination of secret recordings of health-care workers is headed to the governor’s desk. 

Assembly Bill 1671 passed the state Senate Wednesday on the last day of the legislative session. It would impose punishment only for the combined acts of both secretly recording and disseminating those confidential communications to others.

Planned Parenthood Affiliates of California, which spearheaded the legislation, said the bill is needed to protect health-care providers from violence and harassment.

Detractors, however, contend the bill is constitutionally suspect and a threat to investigative journalism, and they say it panders to a single organization (Planned Parenthood).

The bill comes in the wake of a lengthy investigation into Planned Parenthood by the Center for Medical Progress, which is based in Irvine, Calif. The center, which labels itself as a group of citizen journalists, alleged that Planned Parenthood clinics were engaged in the illegal sale of fetal tissues collected from abortions. Planned Parenthood denies the charges, calling them malicious and reckless.

During its 30-month investigation, the center secretly videotaped people connected to Planned Parenthood without their knowledge. Under current California law, it’s a crime to eavesdrop or record confidential conversations without all the parties’ consent.

“This is being pushed by Planned Parenthood, and the California attorney general is working hand in glove with them,” attorney Steve Cooley told AMI Newswire.

Cooley, who represents the center’s lead investigator, David Daleiden, blasted the bill as deeply offensive to the First Amendment, as well as the California Penal Code.

“That the legislature thinks this way is reprehensible,” said Cooley, a former Los Angeles County district attorney. “Nothing would surprise me about the California legislature.”

Officials from the state’s Attorney General’s Office, which is headed by Kamala Harris, searched Daleiden’s apartment earlier this year and seized video files, which were collected during the center's investigation, according to a post on the center’s Facebook page. Harris, who is now a U.S. Senate candidate, has not confirmed whether her office is investigating Daleiden.

The legislation serves the interest of a “selfish, narrow-minded group,” Cooley said. And it also puts the rights of all journalists at risk, he said.

“This is a threat to traditional journalists that use this technique … to expose fraud and malfeasance,” Cooley said.

However, mainstream news outlets have distanced themselves from the tactics Daleiden used in the center’s investigation. The Sacramento Bee said in an editorial that those methods are dishonest and crossed an ethical line.

“It’s not routine for a reporter to pretend he or she is someone else, or to lie to a source,” the editorial said. “It’s not OK to make fraudulent documents to help with that pretense.”

Kathy Kneer, president and CEO of Planned Parenthood Affiliates of California, said that tougher legislation is needed to safeguard the safety and privacy of those in the health-care field.

“We worked hard to craft a bill that balances the rights of privacy and the rights of free speech,” Kneer said in a prepared statement.

A news release from Planned Parenthood said that after the undercover video was posted on the Internet, the organization’s health centers experienced a nine-fold rise in threats and violent actions. This culminated in a shooting at a Colorado health center last year that caused three deaths and nine injuries, the news release said.

Planned Parenthood labels the Center for Medical Progress as an anti-abortion group that engaged in a smear campaign.

“They maliciously edited the tapes and posted them on the Internet to spread lies about Planned Parenthood,” the news release said.

“We contend it’s a political effort and that this was really about restricting access to abortion,” Planned Parenthood spokeswoman Ana Sandoval told AMI.

If Gov. Jerry Brown signs the bill, it will send a clear message to Daleiden and other anti-abortion advocates that they will be prosecuted if they break state laws, Kneer said.

The California Newspaper Publishers Association had opposed earlier versions of the bill, but CNPA legal counsel Nikki Moore told AMI that the association removed its opposition after the bill was amended so it would not put media outlets at risk of prosecution.

“We’ve been negotiating with Planned Parenthood all year to steer them in a direction that would not implicate our members,” Moor said.

As a result, the bill would criminalize only those activities that involve both secret recordings and distribution of the confidential communications. That allows journalists who are given recordings from whistleblowers within the health-care industry to publish newsworthy information without liability risks, she said.

But even though the CNPA no longer has an official position on the bill, Moore acknowledged there remain serious First Amendment concerns about it.

“To the extent the bill creates a new speech crime, we find that very troubling,” Moore said.

The bill’s language relating to the health-care industry is very broad, she said, and a whistleblower in that industry – such as someone who works in prison health care or wants to document medical fraud – could be subject to criminal penalties.

In deciding whether or not to sign the legislation, Gov. Brown would have to determine if it’s constitutional and whether it could lead to litigation costs for the state, Moor said.

“He’s expressed hostility to the creation of new crimes,” she said.

Although Planned Parenthood denies that it profits from fetal-tissue donations and has filed a civil lawsuit against the Center for Medical Progress in federal district court in San Francisco, the organization moved to adopt a “no reimbursement” policy for its affiliates last October. As a result, Planned Parenthood no longer accepts any reimbursements for expenses related to fetal-tissue donations.

“This new policy removes beyond a shadow of a doubt the ludicrous idea that Planned Parenthood has any financial interest in tissue donations,” Kneer said of the policy change.

Only about 1 percent of the organization’s health centers nationwide facilitate patients’ wishes to donate to fetal-tissue research, according to Planned Parenthood, which says its programs comply with all state and federal laws.