California passes bill criminalizing health care sting videos

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( – The California Legislature passed a controversial bill Wednesday which creates a new crime by criminalizing the distribution of secret recordings of confidential communication with a health care provider.

The bill defines confidential communication as “any communication carried on in circumstances that reasonably indicate that any party to the communication desires it to be confined to the parties thereto.” It is already illegal in California to make recordings without the consent of all parties.

The bill was strongly advocated by Planned Parenthood following a series of undercover videos released last summer by the Center for Medical Progress, which claimed that the organization was unlawfully trafficking in fetal tissue.

“After the video smear campaign last summer, we experienced a ninefold increase in violence against our providers and our health centers,” Beth Parker, chief legal counsel of Planned Parenthood Affiliates of California, told the LA Times.

“With the Internet and the tremendous wildfire nature in which news can be spread now through social media, we need to have a crime against distribution by those in particular who did the illegal recording,” Parker said. “A slap on the hand of a $2,500 fine isn’t sufficient.”

State Sen. Hannah-Beth Jackson (D-Santa Barbara) introduced the bill, commenting, “The nation is looking to California to take the lead on protecting access to care and to the doctors who provide that access. This measure will protect reproductive health doctors from violence and intimidation.”

However, state Sen. Joel Anderson (R-Alpine) said the bill unduly protects “an industry that destroys life” and the legislature is “rushing to ensure that [reproductive health doctors] can operate in secrecy.”

The bill met with some unlikely opponents, including the LA Times Editorial Board and the American Civil Liberties Union (ACLU), who raised concerns about the legislation’s potential impact on whistleblowers.

“We know of 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,” the ACLU noted in their opposition to the bill.

“The same rationale for punishing communications of some preferred professions/industries could as easily be applied to other communications – e.g., by law enforcement, animal testing labs, gun makers, lethal injection drug producers, the petroleum industry, religious sects,” it said.

The LA Times Editorial Board also expressed their opposition to the measure Wednesday.

“Make no mistake,” they wrote, “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.

“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,” they add. “The potential for unanticipated and unwelcome consequences is huge.”

The bill now heads to the desk of California Gov. Jerry Brown, who has 30 days to act on it.

— Written by Lauretta Brown