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Welcome to the Mike Gatto Wiki Edit

Greetings!

Gatto Press Photo

Welcome to my Wikibill on privacy issues facing California.

Government has a responsibility to listen to the people and to enable everyone to be an active part of the legislative process. That’s why I’ve created this space for you to draft real legislation. Just like a Wikipedia entry, you can see what the current draft is and propose minor or major edits. The marketplace of ideas will decide the final draft.

This is the only second time I’ve tried this, and although the first year was very successful, I decided that limiting the topic area can be helpful. Inspired by my new role as the Chairman of the Assembly Committee on Privacy and Consumer Protection, this year I’m asking you to weigh in on legislation to protect your privacy.

To contribute, simply click the blue "Edit" button below, next to "DRAFT LEGISLATION HERE"

I hope you see this Wikibill as a great way to use technology to increase privacy protections and to ensure people have a voice in their government.

-Mike Gatto

Assemblyman, California's 43rd District

DRAFT LEGISLATION HEREEdit

- - - Please note - - - This is not a forum to just post ideas.  We ask for you to do your best to outline the bill language.  It need not be fancy, as we will have lawyers put it in proper format.  But you should plan on editing this like you would a Wikipedia page and checking back often to see how your proposal is faring. Edit

Can we (the public) also agree that we will let 2-5 ideas marinate here, by letting them sit here to be reviewed by others? In other words, if I propose something on wiretapping, and the next user proposes something on drones, he or she shouldn't just "zero out" or delete my idea. He or she can post their language underneath mine (or above it; I don't mind). The public can then tweak each proposal until one consensus emerges. Fellow denizens of Wikia, does this make sense? Edit

- Seconded. To the extent people think an idea is bad, they should comment below rather than blanking out. Edit

New Idea on encryption

Not sure if I'm doing this right, but one idea I think would help the public would be something that required people's private information to be encrypted at a certain level. I don't know how this would be written into a law, but seems like there are people on here that might know how to write it. Thanks for listening.

IDEA 1: REFORM RECORDING LAW TO PROVIDE PUBLIC INTEREST DEFENSE FOR CONSUMERS, CRIME VICTIMS, AND INVESTIGATIVE JOURNALISTS

AB-XXX An act to amend Section 632 of the Penal Code, relating to recording of communications

Section 1

The Legislature finds and declares the following:

(a) Privacy and freedom of expression are fundamental human rights.

(b) Citizens, consumers, victims of crime, and journalists have been threatened with prosecution and civil lawsuits for recording matters that it is in the public interest be recorded, such as:

(i) Recording debt collectors threatening consumers in violation of the Rosenthal Act and Federal Fair Debt Collection Practices Act;

(ii) Recording domestic abusers threatening victims of domestic abuse; and

(iii) Recording in the course of investigative journalism, such as recording evidence of regulatory violations by a business that endanger the public.

(c) Courts across the United States, including the United States Court of Appeals for the Ninth Circuit in Fordyce v. City of Seattle and Adkins v. Limtiaco, have recognized that there is a First Amendment right to gather news on matters of public interest, including by recording.

(d) In order to prevent the chilling of investigative journalism by threats of litigation and prosecution, it is desirable to provide a clear public interest defense.

(e) This legislation is intended to overrule the holding of the Second District Court of Appeal in Lieberman v. KCOP Television that Section 632 of the Penal Code does not contain an exception for news-gathering on matters of public interest.

Section 2

Section 632 of the Penal Code is amended to read as follows:

(a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of telephone, smart phone, ipad, laptop computer, or similar communication device, except a radio or group chat interface, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.

(b) The term "person" includes an individual, business association, partnership, corporation, limited liability company, or other legal entity, and an individual acting or purporting to act for or on behalf of any government or subdivision thereof, whether federal, state, or local, but excludes an individual known by all parties to a confidential communication to be overhearing or recording the communication.

(c) The term "confidential communication" includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

(d) Except as proof in an action or prosecution for violation of this section, no evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding.

(e) This section does not apply

(1) to any public utility engaged in the business of providing communications services and facilities, or to the officers, employees or agents thereof, where the acts otherwise prohibited by this section are for the purpose of construction, maintenance, conduct or operation of the services and facilities of the public utility, or

(2) to the use of any instrument, equipment, facility, or service furnished and used pursuant to the tariffs of a public utility, or

(3) to any telephonic communication system used for communication exclusively within a state, county, city and county, or city correctional facility.

(f) This section does not apply to the use of hearing aids and similar devices, by persons afflicted with impaired hearing, for the purpose of overcoming the impairment to permit the hearing of sounds ordinarily audible to the human ear.

(g) This section does not apply

(1) To any recording of a public officer, agent, employee, or contractor, performing public duties in a place open to the public;

(2) To any recording by a consumer of a debt collection communication or any recording by a consumer of any other communications related to consumer transactions, where the consumer reasonably believes that the recording is necessary to protect the rights of the consumer under the Consumer Legal Remedies Act, Rosenthal Act, Federal Fair Debt Collection Practices Act, Unfair Competition Law, or other consumer protection statutes;

(3) To any recording by a victim of crime or other person who intends thereby to prove the commission of a crime, where the person reasonably believes that the recording is necessary to prove the commission of a crime; and

(4) To any recording in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech (including the right to gather news) in connection with a public issue or an issue of public interest, where those terms have the same meaning as under Section 425.16 of the Code of Civil Procedure, and include but are not limited to journalistic recordings for the purpose of proving the existence of crimes, regulatory violations, and other behavior that endangers public health and safety.

(c) As used in this section and Section 635, "cellular radio telephone" means a wireless telephone authorized by the Federal Communications Commission to operate in the frequency bandwidth reserved for cellular radio telephones.

IDEA 3A: STRICT LIABILITY TORT REMEDY FOR VICTIMS OF RELEASE OF PRIVATE INFORMATION

AB-YYY An act relating to torts: action for victims of release of private information

Section 1

The Legislature finds and declares the following:

(a) Leaks of consumer and employee data have become increasingly common.

(b) Large businesses that keep data are far better positioned than individual consumers or employees to control data security measures.

Section 2

Section ____ is added to the Civil Code as follows:

(a) A consumer, employee, or other natural person whose private information is kept by an entity that has either (i) 50 or more employees or (ii) gross revenue exceeding two million dollars, shall have a right of action for all damages proximately caused by the unauthorized release of that person's private information kept by that entity in the course of its business, plus reasonable attorney's fees and costs. This is a strict liability tort.

(b) For good cause, a court may order an entity covered by this section to undertake affirmative acts to prevent or mitigate unauthorized releases of private information.

(c) It shall be an unfair business practice for an entity covered by this section to require any consumer, employee, or other natural person, to waive her rights under this section by contract, and any such contract term shall be unenforceable.

(d) Where the unauthorized release of private information was due to the tortious or otherwise wrongful acts of a third party, an entity covered by this section shall have a right of action and a right of contribution for all damages it is required to pay under this section and the costs of any affirmative acts ordered under this section, plus reasonable attorney's fees and costs.

IDEA 3B: CA VERSION OF PRESIDENT OBAMA'S PROPOSED FEDERAL PRIVACY LAW UPDATE

See http://www.whitehouse.gov/the-press-office/2015/01/12/fact-sheet-safeguarding-american-consumers-families and http://www.nytimes.com/2015/01/12/us/politics/obama-to-call-for-laws-covering-data-hacking-and-student-privacy.html for background. I will add draft bill language once the proposed federal bill text related to this announcement is available. It appears that some of the proposals involve copying California law at the federal level, but others may be new. California actually already has a very strong data breach reporting law, and was recently updated: http://www.bakerlaw.com/alerts/californias-latest-amendments-to-its-data-security-breach-notification-law-much-ado-about-nothing

IDEA 4: PROTECT TEENS' PRIVACY BY DECRIMINALIZING AGE-APPROPRIATE SEXUAL BEHAVIOR

This proposal would prevent state intrusion into the bedrooms of millions of teens, who engage in age-appropriate consensual sexual behavior and currently risk being convicted of misdemeanors under existing law. It is particularly urgent in light of a recent California Supreme Court decision that allows discriminatory penalties for non-vaginal versus vaginal statutory rape--under current law, all consensually sexually active LGBT teens and most consensually sexually active heterosexual teens, if prosecuted, would be subject to MANDATORY sex offender registration.

AB ZZZ: An Act relating to crimes: consensual age-appropriate sexual behavior

Section 1

The Legislature finds and declares the following:

(a) Under current law, hundreds of thousands of California teenagers who engage in consensual age-appropriate sexual behavior risk prosecution;

(b) The threat of prosecution dissuades California teenagers from seeking advice or from reporting intimate partner violence to the police;

(c) The criminalization of age-appropriate sexual behavior makes it difficult for teachers and counselors to educate teenagers about healthy relationships;

(d) The criminalization of common behavior breeds disrespect for the law;

(e) Additionally, the current law governing sexual activity with minors is discriminatory in that it treats heterosexual and homosexual sexual activity differently, punishing the latter more severely, and in that it treats sexual offenses between spouses as of lesser gravity than sexual offenses not between spouses.

Section 2

Section ____ is added to the Penal Code:

(a) A defense to prosecution under sections 261.5(b), 286(b)(1), 288a(b)(1), or 289(h) shall exist when all the following conditions are satisfied:

(i) The defendant is either younger than or not more than two years older than each other participant in the sexual activity;

(ii) The defendant has proved by a preponderance of the evidence that each other participant in the sexual activity consented to the sexual activity; and

(iii) No participant in the sexual activity is younger than fourteen years old.

(b) A defense to prosecution under section 647.6 shall exist when both the following conditions are satisfied:

(i) The defendant was not motivated by abnormal or unnatural sexual interest in children, but by age-appropriate sexual interest; and

(ii) The defendant is either younger than or not more than two years older than the victim.

(c) Notwithstanding any other provision of law, evidence derived from a person who is seeking medical advice or counseling related to the sexual activity or who is reporting acts of intimate partner violence shall not be admissible in a prosecution of the same person for unlawful sexual activity under sections 261.5(b), 286(b)(1), 288a(b)(1), or 289(h).

Section 3

Section ____ is added to the Penal Code:

(a) Notwithstanding any other provision of law, sexual offenses involving oral sex, anal sex, digital sex, and penetration by a foreign object shall not be punished more severely or subjected to harsher registration consequences than sexual offenses involving vaginal sex.

(b) Notwithstanding any other provision of law, a sexual offense committed by one spouse against another shall be punished no less severely than a sexual offense committed against a non-spouse, and shall not be subject to lesser registration consequences.

(c) It is the sense of the Legislature that the decision of the California Supreme Court in Johnson v. Department of Justice, holding discriminatory penalties constitutional, was erroneous, offensive, and deplorable, and should be reconsidered as a matter of urgency.

IDEA 5: TBD

NB:

The idea to reintroduce SB1384 seems to have been blanked out. Is there a reason for that?

Comments on AB170 (DNA Privacy Bill) Edit

- From what I've seen, Asm. Gatto's DNA Privacy Bill is mostly good, but goes too far in one narrow respect. Medical research is important, and the bill should provide that, subject to very strict anonymization protocols to ensure they cannot be traced back to the donor, DNA samples and data based on them may be retained solely for medical research purposes (and use for any other purpose should be a crime). That way, we can ensure science advances to provide treatment for genetic conditions while simultaneously respecting privacy.

Tell Us About Yourself Edit

  • USER NAME: AsmGattoCommunications (structural moderator)

Real name: Communications team for Assemblyman Mike Gatto

Background: Serving California's 43rd Assembly District, which includes Burbank, Glendale, La Canada Flintridge, La Crescenta, Montrose, and the Los Angeles neighborhoods of Atwater Village, East Hollywood, Franklin Hills, Hollywood Hills, Los Feliz, and Silver Lake.

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