Legislature(2007 - 2008)CAPITOL 120
02/05/2007 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB25 | |
| HB7 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 90 | TELECONFERENCED | |
| += | HB 25 | TELECONFERENCED | |
| += | HB 7 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 7 - FALSE CALLER IDENTIFICATION 1:51:29 PM REPRESENTATIVE SAMUELS announced that the final order of business would be HOUSE BILL NO. 7, "An Act relating to false caller identification." 1:52:09 PM REPRESENTATIVE LYNN, speaking as a joint prime sponsor of HB 7, moved to adopt the proposed committee substitute (CS) for HB 7, Version 25-LS0057\C, Bannister, 2/2/07, as the work draft. REPRESENTATIVE SAMUELS, after asking whether there were any objections and getting no response, announced that Version C was before the committee. The committee took an at-ease from 1:52 p.m. to 1:53 p.m. REPRESENTATIVE GRUENBERG, at this time, objected - for the purpose of discussion - to the adoption of Version C as the work draft. REPRESENTATIVE LYNN withdrew his motion. [The motion was later treated as still being before the committee.] 1:54:00 PM DIRK MOFFATT, Staff to Representative Bob Lynn, Alaska State Legislature, speaking on behalf of Representative Lynn, joint prime sponsor, outlined the changes incorporated into Version C by first explaining that when the amendments to the original bill were incorporated into Version C, the new proposed language of, "with the intent to defraud or cause harm" was shortened to just, "with the intent to defraud" because the word "defraud" covers the concept of "cause harm". Another amendment to the original bill replaced "the state" with "a state" in proposed AS 45.45.940(b)(1). [Representative Samuels turned the gavel over to Representative Coghill.] The committee took an at-ease from 1:55 p.m. to 1:56 p.m. REPRESENTATIVE COGHILL, acting as chair, asked Mr. Moffett for a recap of his explanation thus far. MR. MOFFATT provided one. REPRESENTATIVE SAMUELS assisted. REPRESENTATIVE COGHILL acknowledged the correctness of the explanation thus far. 1:58:33 PM JANE W. PIERSON, Staff to Representative Jay Ramras, Alaska State Legislature, further detailed the changes that were incorporated into Version C as a result of the adoption of amendments to the original bill, and noted that the drafter inserted a definition - on page 2, line 5, of Version C - of the term, "intent to defraud" as having the meaning given in AS 11.46.990. REPRESENTATIVE GRUENBERG removed his objection to the adoption of Version C as the work draft. REPRESENTATIVE COGHILL announced that Version C was before the committee. 2:01:19 PM REPRESENTATIVE COGHILL referred to Amendment 1, labeled 25- LS0057\A.3, Bannister, 2/2/07, which read: Page 1, lines 10 - 11: Delete all material and insert: "(c) A violation of (a) of this section is (1) a class B misdemeanor if the false information is inserted in fewer than 25 caller identification systems; (2) a class A misdemeanor if the false information is inserted in 25 or more caller identification systems." REPRESENTATIVE LYNN made a motion to adopt Amendment 1. REPRESENTATIVE COGHILL objected for the purpose of discussion. MR. MOFFATT explained that Amendment 1 would make the insertion of false information into fewer than 25 caller identification systems a class B misdemeanor, and the insertion of false information into 25 or more caller identification systems a class A misdemeanor, which carries with it a maximum one-year jail sentence as opposed to a maximum 90-day jail sentence for a class B misdemeanor. In response to a question, he acknowledged that the number 25 is an arbitrary number, adding that originally they'd contemplated using the number 5 as the threshold between a class A misdemeanor and a class B misdemeanor. 2:03:52 PM ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), in response to a question, concurred that the number 25 was arbitrarily chosen, and relayed that at one point the DOL had suggested that inserting false information less than 25 times ought to be a class B misdemeanor. REPRESENTATIVE SAMUELS referred to the term, "is inserted" as used in Amendment 1, and asked whether, for purposes of charging someone with a crime, the insertion of the false information occurs in the caller's system or in the recipient's system. MS. CARPENETI said her impression is that to be charged with one class B misdemeanor, a person would act once by inserting false information, which would then be transmitted to less than 25 caller identification systems. MR. MOFFATT explained that the intent is to make each instance of false information showing up on the recipient's system one act; so if someone called up more than one person using one set of false information, each call should be considered a separate act. He acknowledged, though, that this point could be further clarified in the bill. REPRESENTATIVE COGHILL noted that a bill's intent and its verbiage don't always travel well together. He asked whether an individual's phone would be considered "a system", or whether "a system" is an automatic caller system that could then make 5,000 calls, for example. The bill needs to be clarified with regard to that point. If 25 individual home phones receive false information, would the intention be for each of those instances to be considered a separate crime? MR. MOFFATT referred to another proposed amendment, and suggested that it might better clarify that point. [Following was a brief discussion regarding how the committee would be proceeding.] 2:09:02 PM REPRESENTATIVE LYNN withdrew Amendment 1. REPRESENTATIVE HOLMES made a motion to adopt Amendment 2, which read [original punctuation provided]: Page 1, lines 10 -11: Delete all material and insert: "(c) a violation of (a) of this section is (1) a class B misdemeanor if a person inserts false information that is transmitted to less than 25 call recipients, except as provided in (2) of this section; (2) a class A misdemeanor if a person inserts false information that is transmitted to 25 or more call recipients, or 25 or more times to the same call recipient." REPRESENTATIVE SAMUELS objected for the purpose of discussion. REPRESENTATIVE HOLMES said she used the language in Amendment 1 as a starting point and then altered that language in an attempt to clarify the point of what actions are going to be counted. She relayed that she and Ms. Carpeneti worked together on Amendment 2. 2:10:41 PM MS. CARPENETI suggested that Amendment 2 is clearer on the point that it would be one act to type in the false information, and then the level of misdemeanor charged would be determined by how many people that false information actually reaches. REPRESENTATIVE SAMUELS asked whether Amendment 2 would be improved by adding to the word, "information" - as used in both paragraphs (1) and (2) of Amendment 2 - the words, "into a caller identification system". MS. CARPENETI acknowledged that such a change could further clarify the point. REPRESENTATIVE LYNN agreed. REPRESENTATIVE SAMUELS made a motion to amend Amendment 2 to that effect. MR. MOFFATT pointed out, though, that a caller identification system is the device at the recipient's end, not the device that transmits the false information. REPRESENTATIVE COGHILL objected - for the purpose of discussion - to the motion to amend Amendment 2. REPRESENTATIVE SAMUELS, acknowledging Mr. Moffatt's point, surmised that this particular amendment to Amendment 2 would be [unnecessary]. MS. CARPENETI suggested that Representative Samuel's concern is addressed by Amendment 2's cross reference to subsection (a) of the bill, and concurred that that amendment to Amendment 2 is unnecessary. REPRESENTATIVE SAMUELS withdrew that amendment to Amendment 2. MS. CARPENETI, raising a drafting issue, suggested that Amendment 2 be amended by moving the language, ", except as provided in (2) of this section" to the beginning of Amendment 2's proposed paragraph (1). The DOL, she relayed, when it drafts legislation, places exceptions at the beginning of sentences rather than at the end. If such an amendment to Amendment 2 is adopted, Amendment 2, as amended, would then read: Page 1, lines 10 -11: Delete all material and insert: "(c) a violation of (a) of this section is (1) except as provided in (2) of this section, a class B misdemeanor if a person inserts false information that is transmitted to less than 25 call recipients; (2) a class A misdemeanor if a person inserts false information that is transmitted to 25 or more call recipients, or 25 or more times to the same call recipient." REPRESENTATIVE GRUENBERG made a motion to amend Amendment 2 to that effect. There being no objection, Amendment 2 was amended. 2:15:23 PM REPRESENTATIVE GRUENBERG pondered whether changing the threshold in Amendment 2, as amended, from 25 calls to 5 calls would make it easier to get a conviction [for a class A misdemeanor]. MS. CARPENETI acknowledged that it would be easier to prove that only 5 calls have been made, but pointed out that phone records could be used to determine how many calls have been made. REPRESENTATIVE GRUENBERG expressed concern that with scarce resources, this new law might not be used if the class A misdemeanor threshold were as high as 25 calls. He suggested either reducing the number of calls from "25" to "5", or, at the very least, stipulating that a class A misdemeanor could result from either 25 or more call recipients, 25 or more calls to the same recipient, or a combination of the two totaling 25. He asked what the committee's thoughts were on the concept of lowering the threshold. 2:19:33 PM CLYDE (ED) SNIFFEN, JR., Assistant Attorney General, Commercial/Fair Business Section, Civil Division (Anchorage), Department of Law (DOL), in response to comments and a question, acknowledged that spoof caller ID technology may be being used by someone to target just one person or a group of people. As a practical matter, most who commit this form of fraud against Alaskans are from out of state, and so he is not sure what resources the DOL will have to prosecute people outside of Alaska for a misdemeanor. He opined that the number of calls won't be an issue when it comes to the practicality of enforcing this proposed statute. REPRESENTATIVE GRUENBERG said he can envision the bill being used as a tool in domestic violence (DV) [prosecutions], and this is one of the reasons why he wishes to lower the threshold number to "5". MS. CARPENETI, in response to a question, offered her belief that individual entries, regardless of how closely or how far apart they occurred, would warrant separate charges. REPRESENTATIVE COGHILL pondered whether setting a threshold would in effect tell scam artists that they merely need to restrict the number of times they use the technology. REPRESENTATIVE GRUENBERG offered his belief that the bill still contains some problems and thus ought to be amended further. REPRESENTATIVE SAMUELS concurred. REPRESENTATIVE SAMUELS made a motion to amend amendment 2, as amended, to change "25" to "5". There being no objection, this second amendment to Amendment 2, as amended, was adopted. 2:26:26 PM REPRESENTATIVE GRUENBERG made a motion to amend Amendment 2, as amended, to add the words ", or a combination of both" before the period in proposed subsection (c)(2). His goal, he indicated, is to ensure that a person would be charged with a class A misdemeanor as long as the number of calls he/she makes totals "5", thus illustrating a course of conduct. MS. CARPENETI characterized the words ",or a combination of both" as problematic, adding that she doesn't see the two existing categories of calls outlined in subsection (c)(2) as alike enough to combine. MR. MOFFATT surmised that the intent is to make each time false information shows up on someone's system a separate act, and so if there are separate acts totaling at least "5", it could result in a class A misdemeanor charge. REPRESENTATIVE SAMUELS suggested instead changing Amendment 2, as amended, to say, under subsection (c)(1), "except as provided in (2) of this section, a class B misdemeanor if a person inserts false information that is transmitted less than 5 times", and under subsection (c)(2), "a class A misdemeanor if a person inserts false information that is transmitted 5 or more times". Under such a change, it won't matter who is called, whether it be one recipient or multiple recipients. REPRESENTATIVE GRUENBERG said such a change would be acceptable to him. MR. MOFFATT added that each call would be one transmission. 2:34:51 PM REPRESENTATIVE GRUENBERG withdrew his amendment to Amendment 2, as amended, to insert ", or a combination of both". REPRESENTATIVE SAMUELS made a motion to amend Amendment 2, as amended, such that it would read: Page 1, lines 10 -11: Delete all material and insert: "(c) a violation of (a) of this section is (1) except as provided in (2) of this section, a class B misdemeanor if a person inserts false information that is transmitted less than 5 times; (2) a class A misdemeanor if a person inserts false information that is transmitted 5 or more times." 2:36:50 PM REPRESENTATIVE COGHILL, asked whether there were any objections to this amendment to Amendment 2, as amended. There being none, this third amendment to Amendment 2, as amended, was adopted. MS. CARPENETI, in response to questions, relayed that her understanding is that if the person inserts the false information that is then transmitted over a period of time, the number of times that calls were made could result in an aggravating factor for that one entry, "subject to some reasonable limits as to time." REPRESENTATIVE COGHILL surmised, then, that if calls are made to 60 individuals over a period of eight months, for example, that activity could be charged as one class A misdemeanor. MS. CARPENETI said it would depend on the situation; for example, in the aforementioned situation, if all the calls resulted from just one entry of false information, it could be just one charge. 2:39:09 PM REPRESENTATIVE SAMUELS argued that there could be 12 separate charges because every fifth call could subject the person to a class A misdemeanor charge. MS. CARPENETI said that that would be true if the person is changing the information after every fifth call - then it would be a new act of inserting false information. In response to questions, she offered her belief that if a person is entering false information that would lead people to believe that a bank is calling, that person will probably be calling hundreds of people, and that if a person - for example, in a DV situation - is entering different information each time, he/she could still be charged with several [class B] misdemeanors. REPRESENTATIVE GRUENBERG surmised that it is somewhat a matter of prosecutorial discretion whether numerous calls during one course of conduct in a DV situation could be aggregated. For the purpose of sentencing, though, the question of whether to apply concurrent sentences for one course of conduct could arise. MS. CARPENETI agreed, adding that there is statutory direction regarding consecutive and concurrent sentencing, though it doesn't necessarily apply to misdemeanors. The DOL, however, does make arguments [for/or against a particular form of sentencing] and the legislature has told the courts that the general approach should be to give consecutive sentences for different offenses. 2:43:00 PM REPRESENTATIVE SAMUELS suggested that it might be better to charge someone with ten class B misdemeanors rather than one class A misdemeanor, and thus they ought to leave the language of Amendment 2, as amended, as is. MS. CARPENETI concurred that if there are a series of class B misdemeanors, it could result in a larger sentence than one class A misdemeanor could result in. REPRESENTATIVE GRUENBERG pointed out, though, that it is also more difficult to prosecute separate charges because each would have to proven separately. REPRESENTATIVE COGHILL offered his belief that if a person is being charged with the crime created by HB 7, he/she will probably also be charged with other crimes. REPRESENTATIVE COGHILL asked whether there were any objections to Amendment 2, as amended. There being none, Amendment 2, as amended, was adopted. REPRESENTATIVE SAMUELS referred to page 1, line 4, of Version C and suggested that the language should say "transmit" instead of "insert". MR. MOFFATT suggested instead that both terms be used; the caller inserts the false information and the recipient then receives that transmitted information. REPRESENTATIVE GRUENBERG noted that they'd been told that someone could insert the false information and then his/her employee actually transmits the information. He suggested, therefore, that the language on page 1, line 4, be changed to say, "insert or transmit", and that the language on page 1, line 10, be changed to say, "inserts or transmits". In this way, both the person who sets up the equipment to display false information and the person who transmits that false information could be charged. He acknowledged, however, that they should ensure that Amendment 2, as amended, tracks any further changes they make. REPRESENTATIVE COGHILL suggested that after the committee finishes amending Version C, that they bring the new CS back before them. 2:48:43 PM REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 3, to add "or transmit" after "insert" on page 1, line 4, and elsewhere in the bill where necessary. MR. MOFFATT opined that Amendment 3 would reflect a completed circuit - that of inserting the false information and then transmitting that information to the recipient - and expressed favor with such a change. REPRESENTATIVE COGHILL asked whether there were any objections to Amendment 3. There being none, Amendment 3 was adopted. REPRESENTATIVE GRUENBERG referred to the language on page 1, line 5 - "a caller identification system" - and suggested that it be altered to say, "one or more caller identification systems". He expressed concern that the prosecution might have to prove that all calls were from just one system. MS. CARPENETI opined that such a change would not be necessary because under the principles of the drafting manual and legislative interpretation, "a caller identification system" could be one or more systems. REPRESENTATIVE COGHILL said he tended to agree, particularly given the specificity of the language adopted via Amendment 2, as amended. REPRESENTATIVE GRUENBERG asked that that point be confirmed with the drafter when the new CS is created. 2:52:12 PM REPRESENTATIVE GRUENBERG referred to page 1, lines 13-14 - which defines "caller" as one who places a call by a telephone or over a telephone line - and asked whether spoof caller identification technology only gets used with telephones or over telephone lines. Or should other forms of communication be included in that definition? MR. MOFFATT noted that the definition also includes calls that are begun on a computer. REPRESENTATIVE LYNN referred to Voice over Internet Protocol (VoIP), and offered his understanding that a lot of long distance callers use VoIP. REPRESENTATIVE COGHILL mentioned that device names will change over time. MS. CARPENETI pointed out that there are some types of calls that may originate on the computer but are not then going over a telephone line. Therefore, additional language ought to be inserted into that definition because currently the proposed crime is limited to actions that take place by telephone or over telephone lines. In response to a question, she opined that it ought to be an easy fix for the drafter to come up a definition that includes any sort of communication. REPRESENTATIVE COGHILL, in response to comments, noted that any new definition language would still come before the committee for review. [The committee spent a few moments introducing audience members.] REPRESENTATIVE COGHILL relayed that HB 7 [Version C, as amended] would be held over.
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