The Corner

California Bill Would Criminalize Whistleblowing in the Health-Care Industry

The California legislature is considering Assembly Bill 1671, which seeks to criminalize recording or distributing private conversations with health-care providers. But the bill’s provisions are such a disincentive to potential whistleblowers that even California Democrats and the local ACLU are criticizing the legislation for being too broad in scope.

The initial form of the bill was even more expansive than the version currently being considered. From the State Senate Committee on Appropriations’ analysis of the original version:

AB 1671 would make it an alternate felony-misdemeanor offense to intentionally distribute, or to aid and abet the distribution of, a confidential communication with a health care provider that was obtained unlawfully. This bill would additionally require the fines specified under the new crime established and the existing offense of unlawfully eavesdropping or recording a confidential communication to be imposed on a per-violation basis.

The original form of the bill drew particular criticism for seeking to punish any third parties that shared recorded material online, as well as those who reported on such recordings or published transcripts of them. The bill’s proponents agreed Tuesday to narrow the provision to prosecute only those who had actively participated in making and distributing the recording, but some objections still remain.

For instance, the California branch of the American Civil Liberties Union has criticized the bill for being too broad – there is no exemption for inadvertent violations that should not actually be classified as criminal, for example. Some of the state’s Democratic lawmakers, too, argue that the provisions need to be narrowed in order to acknowledge exceptional situations in which recording a health-care provider could illuminate serious issues that need to be exposed.

“Everyone is supportive of Planned Parenthood, because it was a terrible thing that happened to them,” said state senator Loni Hancock of Berkeley, Calif., referring to the Center for Medical Progress’s (CMP) 2015 undercover video campaign that revealed evidence of fetal trafficking. However, she also noted that she considered First Amendment rights “core values.”

Even the liberal Los Angeles Times editorial board — which demanded last month that Congress put an end to its “witch hunt for ‘baby body part’ sellers” — opined today against AB 1671, saying the law has the huge potential for “unanticipated and unwelcome consequences” and it “would heap more criminal and civil penalties on making a secret recording . . . simply to satisfy an interest group popular among Sacramento Democrats.”

Opponents of Planned Parenthood argue that the group is lobbying heavily for this bill, and even played a large role in designing it, in order to target the CMP and other groups that might attempt similar undercover campaigns. The group’s insistence upon criminalizing whistleblowing lends credence to the claim that Planned Parenthood might have something to hide, after all.

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