Legislature(2005 - 2006)CAPITOL 106
02/14/2006 03:00 PM HEALTH, EDUCATION & SOCIAL SERVICES
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|Overview: Office of Children's Services|
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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 . 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.