Invasion of privacy: wearable recording devices., the official text

An act to add Chapter 40 (commencing with Section 22949.85) to Division 8 of the Business and Professions Code, and to amend Sections 633, 633.1, and 633.5 of, and to add Section 632.8 to, the Penal Code, relating to privacy.

LEGISLATIVE COUNSEL'S DIGEST

Existing law prohibits tapping a communication wire or intercepting or recording a telephone communication, as specified, without the consent of all parties, and prohibits trespassing on property for the purpose of committing, or attempting to commit, a violation of those prohibitions. A violation of those provisions is punishable by a fine not exceeding $2,500, by imprisonment as either a misdemeanor or a felony, or by both the fine and imprisonment, unless otherwise exempted. If that person has previously been convicted of a violation of any of the above-described laws, except for the prohibition on trespassing, a violation of any of those provisions is punishable by a fine not exceeding $10,000, by imprisonment as either a misdemeanor or a felony, or by both the fine and imprisonment.
This bill would additionally prohibit a person from operating a wearable recording device, as defined, to capture sound or video of any other person in any area within a place of business, as defined, where the person has a reasonable expectation of privacy unless the person operating the device has the explicit consent of that person to capture sound or video of that person. The bill would prohibit a person from disabling any light, sound, or other indicator on a wearable recording device that indicates that the device is capturing sound or video. The bill would exempt from these provisions the use of hearing aids, augmentative and alternative communication devices, and similar devices by persons afflicted with impaired hearing or communication disorders when used for the purpose of overcoming the impairment or disorder to permit the hearing of sounds ordinarily audible to the human ear or to support communication with the person.
The bill would make a violation of these provisions punishable by a fine not exceeding $1,500, by imprisonment as a misdemeanor, or by both that fine and imprisonment. The bill would make the exemptions from the provisions described above applicable to violations of these prohibitions.
By creating new crimes, the bill would impose a state-mandated local program.
The bill would also prohibit a person or entity from manufacturing, selling, delivering, holding, or offering for sale in commerce a wearable recording device without a light, sound, or other indicator that is sufficiently prominent so that a reasonable person in the vicinity would be alerted to the recording activity or any technology that is designed for the primary purpose of, primarily marketed for, or likely primarily used for enabling a person to disable any light, sound, or other indicator on a wearable recording device that indicates that the device is capturing sound or video. The bill would prohibit a person from purchasing, trading for, otherwise acquiring, or using that technology, as specified. The bill would make a knowing violation of these provisions punishable by a civil penalty not exceeding $2,500 per violation.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.

The people of the State of California do enact as follows:

SECTION 1.
Chapter 40 (commencing with Section 22949.85) is added to Division 8 of the Business and Professions Code, to read:
40.
Wearable Recording Devices22949.85.
For the purposes of this chapter, “wearable recording device” has the same meaning as defined in Section 632.8 of the Penal Code.

22949.86.
A person or entity shall not manufacture, sell, deliver, hold, or offer for sale in commerce in this state a wearable recording device without a light, sound, or other indicator that is sufficiently prominent so that a reasonable person in the vicinity would be alerted to the recording activity.

22949.87.
(a) A person or entity shall not manufacture, sell, deliver, hold, or offer for sale in commerce in this state any technology that is designed for the primary purpose of, marketed primarily for, or likely primarily used for enabling a person to disable any light, sound, or other indicator on a wearable recording device that indicates that the device is capturing sound or video.
(b) A person in this state shall not purchase, trade for, or otherwise acquire the technology described in subdivision (a).
(c) A person in this state shall not use any technology to permanently or temporarily disable any light, sound, or other indicator on a wearable recording device that indicates that the device is capturing sound or video if the device would otherwise indicate that it is capturing sound or video.

22949.88.
A person who knowingly violates this chapter shall be liable for a civil penalty not exceeding two thousand five hundred dollars ($2,500) per violation.

SEC. 2.
Section 632.8 is added to the Penal Code, to read:
632.8.
(a) For purposes of this section, the following terms have the following meanings:
(1) “Place of business” means any physical office or retail establishment in which members of the public receive goods or services from the business.
(2) (A) “Wearable recording device” means any device that is designed to be worn on or attached to the body that has the capacity to make sound or video recordings or transmit data received by the device to another device or to the internet.
(B) A wearable recording device does not include a body-worn camera when used by a public officer or peace officer in the course of their official duties.
(b) (1) A person shall not operate a wearable recording device to capture sound or video of any other person in any area within a place of business where the person has a reasonable expectation of privacy unless the person operating the device has the explicit consent of that person to capture sound or video of that person.
(2) The fact that a person takes a photograph or makes an audio or video recording of a public officer or peace officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place the person has the right to be, does not constitute, in and of itself, a violation of paragraph (1), nor does it constitute reasonable suspicion to detain the person or probable cause to arrest the person.
(c) A person shall not disable any light, sound, or other indicator on a wearable recording device that indicates that the device is capturing sound or video.
(d) A violation of this section is punishable by a fine not exceeding one thousand five hundred dollars ($1,500) per violation, or imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(e) This section does not apply to the use of hearing aids, augmentative and alternative communication devices, and similar devices by a person afflicted with impaired hearing or any communication disorder when the hearing aid or device is used for the purpose of overcoming the impairment or disorder to permit the hearing of sounds ordinarily audible to the human ear or to support communication with the person.

SEC. 3.
Section 633 of the Penal Code is amended to read:
633.
(a) Nothing in Section 631, 632, 632.5, 632.6, 632.7, or 632.8 prohibits the Attorney General, any district attorney, or any assistant, deputy, or investigator of the Attorney General or any district attorney, any officer of the California Highway Patrol, any peace officer of the Office of Internal Affairs of the Department of Corrections and Rehabilitation, any chief of police, assistant chief of police, or police officer of a city or city and county, any sheriff, undersheriff, or deputy sheriff regularly employed and paid in that capacity by a county, police officer of the County of Los Angeles, or any person acting pursuant to the direction of one of these law enforcement officers acting within the scope of their authority, from overhearing or recording any communication that they could lawfully overhear or record prior to January 1, 1968.
(b) Nothing in Section 631, 632, 632.5, 632.6, 632.7, or 632.8 renders inadmissible any evidence obtained by the above-named persons by means of overhearing or recording any communication that they could lawfully overhear or record prior to January 1, 1968.

SEC. 4.
Section 633.1 of the Penal Code is amended to read:
633.1.
(a) Nothing in Section 631, 632, 632.5, 632.6, 632.7, or 632.8 prohibits any person regularly employed as an airport law enforcement officer, as described in subdivision (d) of Section 830.33, acting within the scope of their authority, from recording any communication which is received on an incoming telephone line, for which the person initiating the call utilized a telephone number known to the public to be a means of contacting airport law enforcement officers. In order for a telephone call to be recorded under this subdivision, a series of electronic tones shall be used, placing the caller on notice that their telephone call is being recorded.
(b) Nothing in Section 631, 632, 632.5, 632.6, 632.7, or 632.8 renders inadmissible any evidence obtained by an officer described in subdivision (a) if the evidence was received by means of recording any communication which is received on an incoming public telephone line, for which the person initiating the call utilized a telephone number known to the public to be a means of contacting airport law enforcement officers.
(c) This section shall only apply to airport law enforcement officers who are employed at an airport which maintains regularly scheduled international airport service and which maintains permanent facilities of the United States Customs Service.

SEC. 5.
Section 633.5 of the Penal Code is amended to read:
633.5.
Sections 631, 632, 632.5, 632.6, 632.7, and 632.8 do not prohibit one party to a confidential communication from recording the communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person, including, but not limited to, human trafficking, as defined in Section 236.1, or a violation of Section 653m, or domestic violence as defined in Section 13700. Sections 631, 632, 632.5, 632.6, 632.7, and 632.8 do not render any evidence so obtained inadmissible in a prosecution for extortion, kidnapping, bribery, any felony involving violence against the person, including, but not limited to, human trafficking, as defined in Section 236.1, a violation of Section 653m, or domestic violence as defined in Section 13700, or any crime in connection therewith.

SEC. 6.
No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.