Legislature(2005 - 2006)CAPITOL 106

02/14/2006 03:00 PM HEALTH, EDUCATION & SOCIAL SERVICES


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03:06:27 PM Start
03:07:13 PM Overview: Office of Children's Services
03:50:53 PM HB393
04:33:15 PM HB414
04:58:01 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Presentation by Dept. of Health & Social TELECONFERENCED
Services on the Office of Children's
Services (OCS)
+= HB 271 LIMIT OVERTIME FOR REGISTERED NURSES TELECONFERENCED
Scheduled But Not Heard
+ HB 393 INSURANCE FOR COLORECTAL CANCER SCREENING TELECONFERENCED
Moved CSHB 393(HES) Out of Committee
*+ HB 414 INTERCEPTION OF MINOR'S COMMUNICATIONS TELECONFERENCED
Moved CSHB 414(HES) Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
HB 414-INTERCEPTION OF MINOR'S COMMUNICATIONS                                                                                 
                                                                                                                                
CHAIR WILSON announced that the  final order of business would be                                                               
HOUSE BILL  NO. 414,  "An Act  relating to  allowing a  parent or                                                               
guardian of  a minor to  intercept the private  communications of                                                               
the minor and to consent  to an order authorizing law enforcement                                                               
to intercept the private communications of the minor."                                                                          
                                                                                                                                
4:33:15 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  ANDERSON moved  to adopt  the proposed  committee                                                               
substitute (CS) for HB 414,  Version 24-LS1565\G, Wayne, 2/13/06,                                                               
as the  working document.   There being  no objection,  Version G                                                               
was before the committee.                                                                                                       
                                                                                                                                
REPRESENTATIVE  PETE  KOTT as  prime  sponsor  introduced HB  414                                                               
paraphrasing  from his  sponsor  statement [original  punctuation                                                               
provided]:                                                                                                                      
                                                                                                                                
     The  Committee  substitute  for  House  Bill  414  will                                                                    
     protect  minors from  predators and  other insalubrious                                                                    
     characters.   HB  414 amends  AS 12.37.030  to allow  a                                                                    
     parent  or  guardian  of  a minor  to  consent  to  the                                                                    
     interception  of  communications  of  the  minor  under                                                                    
     certain, specific  circumstances.   Specifically, where                                                                    
     the  parent  of   the  minor  has  a   good  faith  and                                                                    
     objectively reasonable belief that  it is necessary for                                                                    
     the welfare, and  in the best interest of  the minor to                                                                    
     do so, he or she may  consent on behalf of the child to                                                                    
     the interception of a communication  by the minor.  The                                                                    
     parent's properly  given consent  may be utilized  by a                                                                    
     judge to grant an ex  parte order permitting the proper                                                                    
     authorities  to  monitor   and  intercept  the  minor's                                                                    
     communications.                                                                                                            
                                                                                                                                
     HB 414  also amends AS  42.20.320 to permit  the parent                                                                    
     of the  minor in  question to  himself or  herself [to]                                                                    
     intercept  the communication  without fear  of criminal                                                                    
     prosecution.  Under  current law, no person  who is not                                                                    
     party to  the communication  may intercept  any portion                                                                    
     of  a   communication  between  others.     To   do  so                                                                    
     constitutes a  criminal offense in  Alaska.   Section 3                                                                    
     of HB 414  creates an exception that  allows the parent                                                                    
     of  a   minor  child  to  intercept   a  minor  child's                                                                    
     communications.                                                                                                            
                                                                                                                                
     With passage of this  legislation, we allow parents and                                                                    
     guardians  to protect  their children,  and we  provide                                                                    
     them the tools to do so.                                                                                                   
                                                                                                                                
REPRESENTATIVE KOTT  pointed out that  in Section 4 of  the bill,                                                               
"minor" is  defined as under the  age of 18 and  not emancipated;                                                               
emancipated minors are exempt from HB 414.                                                                                      
                                                                                                                                
4:36:20 PM                                                                                                                    
                                                                                                                                
CHAIR WILSON  asked if a parent  observed a child in  an Internet                                                               
chat room  and deemed the  content inappropriate, will  this bill                                                               
allow the parent to call the police for investigative purposes.                                                                 
                                                                                                                                
REPRESENTATIVE   KOTT  answered   that   HB   414  provides   for                                                               
appropriate parental intervention, although  there is an inherent                                                               
weakness  in this  legislation given  our state's  constitutional                                                               
right to privacy.   He submitted that privacy is  not an absolute                                                               
right when  given the compelling  need to override that  right to                                                               
protect   children.     He  stated   that  certain   insalubrious                                                               
individuals  prey on  children over  the  Internet, and  although                                                               
there are  computer programs for  purchase to  provide monitoring                                                               
capabilities,  using these  programs  does not  allow parents  to                                                               
intercept  the  messages or  intervene  on  a  legal level.    He                                                               
maintained that  HB 414  will assist parents  who are  faced with                                                               
raising today's children and provide  them with the tools and the                                                               
authority  to  act  responsibly  on their  child's  behalf.    He                                                               
explained  that while  parents are  legally  responsible for  the                                                               
actions  of  their minor  children,  they  are not  provided  the                                                               
"tools" to assist them in  monitoring their child's activity in a                                                               
way that  could help to  stem a  situation.  He  provided several                                                               
examples  of how  parents are  at a  disadvantage due  to today's                                                               
technologically  connected children.   He  assured the  committee                                                               
that this  bill does not run  afoul of the federal  Omnibus Crime                                                               
Control and Safe Streets Act [1968].   Although not tested in the                                                               
9th Circuit Court  of Appeals, he opined, that  if these measures                                                               
are  placed  in  statute  and challenged  they  would  be  viewed                                                               
favorably in the courts.                                                                                                        
                                                                                                                                
CHAIR WILSON  instructed the committee  to look at this  bill not                                                               
in a  judicial light, but  whether HB  414 creates a  good policy                                                               
for the state.                                                                                                                  
                                                                                                                                
4:41:44 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GARDNER stated  support for HB 414  as it provides                                                               
a  formalization and  legal authority  to  what here-to-fore  has                                                               
been a parent's assumed privilege  in providing for their child's                                                               
safety and well-being.  She  maintained that when parents are not                                                               
afforded appropriate means to manage  their child's welfare, they                                                               
are crippled and may abdicate responsibility.                                                                                   
                                                                                                                                
REPRESENTATIVE KOTT acknowledged the  importance of the informal,                                                               
nonconsensual,  eavesdropping measures  historically employed  by                                                               
parents.                                                                                                                        
                                                                                                                                
REPRESENTATIVE CISSNA  interjected that there is  a difference in                                                               
what occurs  at home informally,  and what is being  discussed in                                                               
HB  414;  information  that  may be  gathered  and  presented  as                                                               
evidence in a  court case.  She asked how  this bill would effect                                                               
a situation involving a divided home with opposing parents.                                                                     
                                                                                                                                
REPRESENTATIVE KOTT  answered that the  intent of the bill  is to                                                               
provide for  the welfare and safety  of a child, and  protect the                                                               
child  from  engaging  in  dangerous   behavior.    He  conceded,                                                               
however,  that  it  does  not  ensure  against  opposing  parents                                                               
construing the opportunity  for their own interests.   He pointed                                                               
out that  some states do  have variations  of this bill  in place                                                               
and their  circuit courts generally uphold  the vicarious consent                                                               
ruling; other states maintain the two-party consent rule.                                                                       
                                                                                                                                
4:46:37 PM                                                                                                                    
                                                                                                                                
JOSH  FINK, Director,  Office of  Public Advocacy,  Department of                                                               
Administration (DOA),  stated that  adding the exception  for the                                                               
minor's attorney or  guardian ad litem was  an important addition                                                               
to this bill.  He called  the committee's attention to the Alaska                                                               
Rules of Evidence  501-506, where the policy decision  as to what                                                               
communications  are confidential  has previously  been addressed.                                                               
He explained that the Rules  expand the confidentiality exemption                                                               
to cover  discussions with a therapist,  physician, or clergyman,                                                               
and he asked  the committee to consider what  exception policy it                                                               
would deem appropriate.                                                                                                         
                                                                                                                                
4:48:51 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON  asked,  considering custody  and  divorce                                                               
situations, should the language on  page 1, [line 9], include the                                                               
term "custodial" prior to parent or guardian.                                                                                   
                                                                                                                                
DEAN GUANELI,  Chief Assistant  Attorney General,  Legal Services                                                               
Section, Criminal  Division, Department  of Law  (DOL), clarified                                                               
that  in  custody   situations  one  of  the   parents  is  often                                                               
restricted to visitation rights, and  either parent may have some                                                               
need to monitor  conversations in the child's best  interest.  He                                                               
stated:                                                                                                                         
                                                                                                                                
     There's  certainly a  good policy  basis for  extending                                                                    
     these same rights  to someone who has  legal custody as                                                                    
     opposed to simply physical custody.   ... It would come                                                                    
     as a shock  to ... parents that they can't  ... pick up                                                                    
     the  phone and  listen in  to a  conversation, or  read                                                                    
     their child's  e-mail, or  tape record  a conversation,                                                                    
     but given our eavesdropping statute and the breadth of                                                                     
      it ... all of those things are problematical ... and                                                                      
     this bill fixes that.                                                                                                      
                                                                                                                                
REPRESENTATIVE  SEATON  explained   the  importance  of  ensuring                                                               
against  custodial manipulation  that may  result in  overturning                                                               
parental custody of  a child; stressing the need  for this aspect                                                               
to  be addressed  as a  policy or  clarified/considered when  the                                                               
bill is reviewed by the House Judiciary Standing Committee.                                                                     
                                                                                                                                
MR. GUANELI stated that there is  an option to provide the rights                                                               
of HB 414 only to the  parent with physical custody.  In agreeing                                                               
that  this  area  of  the bill  requires  further  attention,  he                                                               
explained  that  when parental  rights  have  been terminated  by                                                               
court  order   it  presents  a   different  question   than  when                                                               
visitation is allowed.  In response  to a question of how parents                                                               
might manipulate  this right to monitor  communications between a                                                               
child and the opposing parent, he  answered that the way the bill                                                               
is written either  parent would have the ability to  listen in on                                                               
conversations.   He  stated that  the  issue to  consider is  how                                                               
information is gathered,  by whom it is gathered, and  how it may                                                               
be used in a court of law.   Further, he questioned the wisdom to                                                               
"allow a  system to persist if  it is a disincentive  for parents                                                               
to fully exercise their parental rights..."                                                                                     
                                                                                                                                
4:56:00 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON  asked that  the bill sponsors  clarify the                                                               
eavesdropping  language of  HB 414  between parents  in custodial                                                               
situations  in  which  one parent  may  inadvertently  have  more                                                               
rights than the other.                                                                                                          
                                                                                                                                
4:57:20 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  ANDERSON moved  to report  CSHB 414,  Version 24-                                                               
LS1565\G,  Wayne,  2/13/06,  out  of  committee  with  individual                                                               
recommendations  and the  accompanying zero  fiscal note.   There                                                               
being no  objection, CSHB  414(HES) was  reported from  the House                                                               
Health, Education and Social Services Standing Committee.                                                                       

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