BILL NUMBER: SB 202 CHAPTERED
BILL TEXT
CHAPTER 626
FILED WITH SECRETARY OF STATE SEPTEMBER 29, 2006
APPROVED BY GOVERNOR SEPTEMBER 29, 2006
PASSED THE SENATE AUGUST 31, 2006
PASSED THE ASSEMBLY AUGUST 28, 2006
AMENDED IN ASSEMBLY AUGUST 24, 2006
AMENDED IN ASSEMBLY AUGUST 17, 2006
AMENDED IN ASSEMBLY AUGUST 7, 2006
AMENDED IN ASSEMBLY JUNE 28, 2006
AMENDED IN ASSEMBLY JUNE 8, 2006
AMENDED IN ASSEMBLY MAY 4, 2006
AMENDED IN ASSEMBLY MARCH 15, 2006
AMENDED IN ASSEMBLY AUGUST 18, 2005
INTRODUCED BY Senators Simitian, Figueroa, and Maldonado
(Principal coauthors: Assembly Members Leno and Pavley)
(Coauthors: Assembly Members Benoit, Cohn, and Houston)
FEBRUARY 10, 2005
An act to add Section 638 to the Penal Code, relating to privacy.
LEGISLATIVE COUNSEL'S DIGEST
SB 202, Simitian Privacy: telephone calling pattern record or
list.
Existing law prohibits a telephone or telegraph corporation, with
certain exceptions, from making available to any other person or
corporation, without first obtaining a residential subscriber's
consent in writing, the subscriber's personal calling patterns,
including any listing of the telephone or other access numbers called
by the subscriber.
Existing law pertaining to the protection of privacy, makes it a
crime, punishable by fine or imprisonment or both, with certain
exceptions, to wiretap, eavesdrop, or otherwise intercept telephone
or telegraph communications without authorization.
This bill would make it a crime, punishable by fine, imprisonment,
or both, to purchase, sell, offer to purchase or sell, or conspire
to purchase or sell, without the written consent of the subscriber,
or procure through fraud or deceit, a telephone calling pattern
record or list. Because a violation of the bill's provisions would be
a crime, this bill would impose a state-mandated local program by
creating new crimes.
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. Section 638 is added to the Penal Code, to read:
638. (a) Any person who purchases, sells, offers to purchase or
sell, or conspires to purchase or sell any telephone calling pattern
record or list, without the written consent of the subscriber, or any
person who procures or obtains through fraud or deceit, or attempts
to procure or obtain through fraud or deceit any telephone calling
pattern record or list shall be punished by a fine not exceeding two
thousand five hundred dollars ($2,500), or by imprisonment in a
county jail not exceeding one year, or by both a fine and
imprisonment. If the person has previously been convicted of a
violation of this section, he or she is punishable by a fine not
exceeding ten thousand dollars ($10,000), or by imprisonment in a
county jail not exceeding one year, or by both a fine and
imprisonment.
(b) Any personal information contained in a telephone calling
pattern record or list that is obtained in violation of this section
shall be inadmissible as evidence in any judicial, administrative,
legislative, or other proceeding except when that information is
offered as proof in an action or prosecution for a violation of this
section, or when otherwise authorized by law, in any criminal
prosecution.
(c) For purposes of this section:
(1) "Person" includes an individual, business association,
partnership, limited partnership, corporation, limited liability
company, or other legal entity.
(2) "Telephone calling pattern record or list" means information
retained by a telephone company that relates to the telephone number
dialed by the subscriber, or other person using the subscriber's
telephone with permission, or the incoming number of a call directed
to the subscriber, or other data related to such calls typically
contained on a subscriber telephone bill such as the time the call
started and ended, the duration of the call, any charges applied, and
any information described in subdivision (a) of Section 2891 of the
Public Utilities Code whether the call was made from or to a
telephone connected to the public switched telephone network, a
cordless telephone, as defined in Section 632.6, a telephony device
operating over the Internet utilizing voice over Internet protocol, a
satellite telephone, or commercially available interconnected mobile
phone service that provides access to the public switched telephone
network via a mobile communication device employing radiowave
technology to transmit calls, including cellular radiotelephone,
broadband Personal Communications Services, and digital Specialized
Mobile Radio.
(3) "Telephone company" means a telephone corporation as defined
in Section 234 of the Public Utilities Code or any other person that
provides residential or commercial telephone service to a subscriber
utilizing any of the technologies or methods enumerated in paragraph
(2).
(4) For purposes of this section, "purchase" and "sell" shall not
include information provided to a collection agency or assignee of
the debt by the telephone corporation, and used exclusively for the
collection of the unpaid debt assigned by the telephone corporation,
provided that the collection agency or assignee of the debt shall be
liable for any disclosure of the information that is in violation of
this section.
(d) An employer of, or entity contracting with, a person who
violates subdivision (a) shall only be subject to prosecution
pursuant to that provision if the employer or contracting entity
knowingly allowed the employee or contractor to engage in conduct
that violated subdivision (a).
(e) It is the intent of the Legislature to ensure that telephone
companies maintain telephone calling pattern records or lists in the
strictest confidence, and protect the privacy of their subscribers
with all due care. While it is not the intent of the Legislature in
this act to preclude the sharing of information that is currently
allowed by both state and federal laws and rules governing those
records, it is the Legislature's intent in this act to preclude any
unauthorized purchase or sale of that information.
(f) This section shall not be construed to prevent a law
enforcement or prosecutorial agency, or any officer, employee, or
agent thereof from obtaining telephone records in connection with the
performance of the official duties of the agency consistent with any
other applicable state and federal law.
(g) Nothing in this section shall preclude prosecution under any
other provision of law.
(h) The Legislature hereby finds and declares that,
notwithstanding the prohibition on specific means of making available
or obtaining personal calling records pursuant to this section, the
disclosure of personal calling records through any other means is no
less harmful to the privacy and security interests of Californians.
This section is not intended to limit the scope or force of Section
2891 of the Public Utilities Code in any way.
SEC. 2. 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.