Legislature(1999 - 2000)
04/10/2000 01:28 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 338-CRIMES INVOLVING TECHNOLOGY OR I.D. CHAIRMAN KOTT announced that the next order of business would be HOUSE BILL NO. 338, "An Act relating to crimes involving computers, access devices, other technology, and identification documents; relating to the crime of criminal impersonation; relating to crimes committed by the unauthorized access to or use of communications in electronic storage; and providing for an effective date." Number 1289 REPRESENTATIVE JAMES moved to adopt the proposed committee substitute (CS), Version D [GH2025\D, Luckhaupt, 3/23/00] as the working document. There being no objection, it was so ordered and Version D was before the committee. ANNE CARPENETI, Assistant Attorney General, Legal Services Section - Juneau, Criminal Division, Department of Law, informed the committee that HB 338 was amended, in accordance with Representative Rokeberg's concerns, to delete the prior Sections 16 and 17, which amended Title 47. She pointed out that on page 4, Section 10 was amended in order to make it a class C felony to commit a crime involving consumer protection if done over the Internet or by a computer network. Representative Rokeberg and some witnesses were concerned that the prior version of HB 338 was too broad. MS. CARPENETI mentioned a memorandum from Gerald Luckhaupt, Legislative Counsel, Division of Legal and Research Services, which addresses some of his suggestions. Some of Mr. Luckhaupt's suggestions have been made in the Senate, which the department does not have any objections to. However, the department would prefer that the committee not adopt suggestions 4(a) and 5. Mr. Luckhaupt, in suggestion 4(a), expresses concern about the definitions. MS. CARPENETI said that she is not concerned about the definitions and would not want them combined. She then turned to Mr. Luckhaupt's suggestion 3 regarding Section 8 of the bill. If this change to Section 8 is made, then preference for the language would be "recording or electronic data" in order to be absolutely clear that the reference is to data on a computer. In regard to Mr. Luckhaupt's suggestion 4(b) regarding the definition of an "access device" and the word "key." In the Senate the word "key" was deleted and the word "algorithm" was inserted. She explained that what was intended was a code rather than a "key" to a house, which was of concern to Mr. Luckhaupt. Ms. Carpeneti addressed Mr. Luckhaupt's suggestion 5 regarding the definition of "proprietary information." The department objects to cross-referencing that statute in Title 48 as it is really not a criminal type definition and is too broad to be referenced in criminal law. Number 1575 REPRESENTATIVE CROFT moved that the committee adopt, from Mr. Luckhaupt's memorandum dated 3/22/00, suggestions 1, 2, 3 and 4(b). He referred to this as Amendment 1. CHAIRMAN KOTT clarified that Mr. Luckhaupt's suggestion 3 would be supplemented by Ms. Carpeneti's comments in which she suggested the use of the language "or electronic data." Furthermore, Mr. Luckhaupt's suggestion 4(b) would be supplemented by Ms. Carpeneti's [suggestion] to use the word "algorithm" instead of "key." CHAIRMAN KOTT asked if there were any objections to Amendment 1. There being no objection, Amendment 1 was adopted. Number 1674 BLAIR McCUNE, Deputy Director, Alaska Public Defender Agency, testified via teleconference from Anchorage. He noted that the agency's main concern is with the breadth of HB 338, which is a property crime bill. He expressed the importance with property crimes to link the penalty to the damage caused to property or economic interests. He assumed that some of the things included in the companion bill, SB 259, were also being considered for HB 338 in order to narrow the penalties and scope of the bill. Another area of concern for the agency is the broad definition of "access device," which could merely mean having someone else's social security number. However, when one thinks of theft, one usually thinks of stealing some physical property rather than an identification number. He pointed out that Section 4(b) links the fraudulent use of an access device to property and the amount of damage caused, which he believes to be a good thing. MR. McCUNE turned to Section 6, which refers to criminal impersonation in the first degree as a class B felony. That is a serious offense. If someone does minimal damage to someone's financial reputation, it doesn't seem appropriate that the individual would face a felony charge. He moved on to Section 11, which is a class C felony. He was not sure if in paragraph (2) the word "misleading" remained; he expressed concern that it is a very broadly written statute regarding the use of computers. He informed the committee that there is [already] a class A misdemeanor anti-hacking statute. Therefore, when things are brought up to the felony level, there is the desire to ensure that there is some demonstrable damage to public interest or personal property. Mr. McCune offered to review the latest version of HB 338 and provide the committee with comments. Number 1928 REPRESENTATIVE KERTTULA pointed out that in Version D, the criminal impersonation in the first degree remains a class B felony, and it seems that the mens rae is criminal negligence. She remarked that criminal negligence seems like a low standard. She then inquired as to Mr. McCune's thoughts on that. MR. McCUNE said that Representative Kerttula had a valid point. He pointed out that the federal legislation after which some of HB 338 is patterned always seems to include an "intentional" [reference]. He recalled that the language of the federal statute says something to the effect of "with intent to defraud." Therefore, he felt such language would narrow the scope. MS. CARPENETI explained that HB 338 protects people who have had their identity stolen and used to defraud stores, banks and credit card companies. She pointed out that it will be difficult to prove even criminal negligence in terms of the reputation of the person, which is where the harm is. This statute was proposed in order to make the victim the real victim, the person whose identity has been stolen, in addition to the stores that are defrauded. Ms. Carpeneti acknowledged that reckless could be used, but it will be difficult to prove. She emphasized that this is a serious offense that really harms people and should be a class B felony. Ms. Carpeneti stated that she would not prefer changing the charge to recklessness. She clarified, "We're not talking about defrauding the victim. We're talking about defrauding people that you get property from and by doing that you are harming the financial reputation of a person." REPRESENTATIVE KERTTULA commented that an underlying crime exists and the individual will not only be charged with [criminal impersonation in the first degree]. MS. CARPENETI interjected that it would depend. She informed the committee that one of the cases that led to the introduction of this legislation was a person in Ketchikan, whose identity was stolen in Seattle. The individual who stole the Ketchikan woman's identity, opened a bank account and purchased a car, among other things. The person could not be prosecuted for purchasing a car, but the person could be prosecuted for damaging the person's reputation. This caused serious harm, which could last for the rest of [the victim=s] life because this person still has her credit card number and has never been prosecuted in Washington for this. Therefore, raising [the charge] to recklessness would make it more difficult and thus she would prefer that not be done. Ms. Carpeneti clarified that this is not addressing the intent to defraud in a federal statute because this addresses the consequences of certain acts on another person, not the person the property is being taken from. MS. CARPENETI answered, in response to Representative Kerttula, that she didn't know that the federal Act has this particular provision. She recognized that the state uses intent to defraud in all these other statutes; however, this section doesn't address defrauding the victim but rather harming their reputation. TAPE 00-56, SIDE A Number 0049 REPRESENTATIVE ROKEBERG moved to report CSHB 338 [version GH2025\D, Luckhaupt, 3/23/00] as amended out of committee with individual recommendations and the accompanying fiscal notes. REPRESENTATIVE KERTTULA commented that she would research the mental state and bring that information to the floor. REPRESENTATIVE MURKOWSKI inquired as to the next committee of referral for HB 338. CHAIRMAN KOTT answered that the next committee or referral is the House Finance Committee. He speculated that the [companion] Senate bill would come over [before HB 338 crosses over to the Senate]. Number 0106 REPRESENTATIVE KERTTULA objected and said that she wanted to insert a higher mental state. Representative Kerttula moved that "reckless" be inserted as the mental state for this. [This is Amendment 2.] REPRESENTATIVE ROKEBERG objected for the purpose of discussion. REPRESENTATIVE KERTTULA explained that criminal negligence is one of the lowest mental states that there is. Therefore, she is concerned that with a class B felony with a presumptive sentence, it is a very "hefty" sentence. Representative Kerttula said, "I just have a problem writing a new statute including a very, very light mental state with a class B felony. I really think that is too fast a step." MS. CARPENETI informed the committee of the definition of "criminal negligence" as follows: The person acts with criminal negligence with respect to a result or a circumstance described by a provision of law defining a defense when the person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. MS. CARPENETI defined "recklessly" as follows: The person acts recklessly with respect to a result or to a circumstance as described by a provision of law defining a defense when the person is aware of and consciously disregards a substantial and unjustifiable risk that that result will occur or the circumstance exists. The risk must be of such a nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who is unaware of the risk of which the person would have been aware had that person had not been intoxicated acts recklessly with respect to that risk. MS. CARPENETI explained that the difference is whether one knows of the risk and consciously disregards the risk or the failure to perceive the risk is a gross deviation from how people should behave. Number 0271 REPRESENTATIVE ROKEBERG inquired as to the standard for second degree, a class A misdemeanor. REPRESENTATIVE KERTTULA asked if it would default to Aknowingly.@ MS. CARPENETI clarified that it is a circumstance and thus it would default to recklessly. REPRESENTATIVE ROKEBERG asked if it is a higher standard. MS. CARPENETI explained that the second degree addresses a different situation in which an individual assumes a false identity and defrauds someone with that false identity. With criminal impersonation in the first degree, an individual is defrauding someone, but the harm the statute addresses is the harm to the reputation of the person whose identity was stolen. REPRESENTATIVE KERTTULA commented that she still believes [that the culpable mental state] should be reckless. She inquired as to how many class B felonies actually have criminal negligence as a mental state. MS. CARPENETI answered that criminal negligent homicide [would be a class B felony with criminal negligence as the mental state]. REPRESENTATIVE KERTTULA said that is a good example in that an individual has killed a person and the mental state of [the murderer] may not have to be as significant. She reiterated that she believes reckless is more appropriate because the individual is aware of it and disregards it. Number 0448 REPRESENTATIVE KERTTULA reiterated her former motion to insert [on page 4, line 8] "reckless" as the mental state for this [rather than criminal negligence]. REPRESENTATIVE CROFT asked if criminally negligent homicide is a class B felony. MS. CARPENETI replied, "It is now." REPRESENTATIVE CROFT surmised, "With criminal negligence enhancing somebody's data record, we're going to put on the same level as criminally killing somebody - criminal negligence killing someone." MS. CARPENETI clarified that this is a class C felony. REPRESENTATIVE KERTTULA, in response to a question, clarified that she was referring to Section 6, which has a class B felony. MS. CARPENETI noted that Mr. McCune had mentioned that the Senate had removed the "misleading" provision in Section 11, which is of concern to Mr. McCune. Ms. Carpeneti clarified, "Other than that, that's the only thing this bill doesn't do in terms of narrowing the bill down that the Senate version doesn't do." REPRESENTATIVE KERTTULA restated her motion [Amendment 2]. REPRESENTATIVE ROKEBERG maintained his objection. REPRESENTATIVE CROFT surmised, then, that "we" would place it at the same level as criminal negligence for killing someone to criminal negligence for damage to an individual's financial reputation. MS. CARPENETI remarked that it is the same culpable mental state, although it is different harm and a different act. REPRESENTATIVE CROFT said, "But we'll punish it in the same category." MS. CARPENETI answered in the affirmative. REPRESENTATIVE ROKEBERG asked if criminal negligent homicide is similar to drunk driving homicide. MS. CARPENETI specified that drunk driving is usually manslaughter. Number 0643 REPRESENTATIVE ROKEBERG pointed out that [Amendment 2] is based on the [idea] that the reckless standard is a higher level as the person more knowingly does something. However, in this case a person would steal a person's credit card and use it to destroy a person's financial reputation by "ripping them off." He asked if his understanding is correct. REPRESENTATIVE KERTTULA specified that to be the problem; criminal negligence is a very low mental state, rather than being a "thinking act." She continued, "Then the next one's going to be reckless, where you're aware of it and you disregard it and then you've got intentional." Therefore, she felt that with a class B felony "more knowing what you're doing" should be there. She agreed that if "you" default, "you" would go to Arecklessly.@ REPRESENTATIVE ROKEBERG interjected that second degree is a different crime. REPRESENTATIVE KERTTULA agreed. She pointed out that normally if a standard is not listed, the standard used would be Arecklessly.@ MS. CARPENETI specified, "Reckless with regard to circumstances; knowing with regard to intent." Upon a roll call vote, Representatives Kerttula, Murkowski, Croft and Kott voted in favor of [Amendment 2] and Representatives Rokeberg and James voted against it. Therefore, Amendment 2 was adopted by a vote of 4-2. Number 0792 REPRESENTATIVE KERTTULA moved that the committee adopt Amendment 3, which read: Page 5, lines 10 and 13, Delete "or misleading" There being no objection, Amendment 3 was adopted. Number 0835 REPRESENTATIVE MURKOWSKI moved to report CSHB 338 [version GH2025\D, Luckhaupt, 3/23/00] as amended out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, it was so ordered and CSHB 338(JUD) was reported from the House Judiciary Committee.
| Document Name | Date/Time | Subjects |
|---|