Legislature(2013 - 2014)CAPITOL 120
03/07/2014 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB255 | |
| HJR33 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 127 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HJR 33 | TELECONFERENCED | |
| += | HB 255 | TELECONFERENCED | |
HB 255-UNMANNED AIRCRAFT SYSTEMS
CHAIR KELLER announced that the first order of business is HB
255. "An Act relating to unmanned aircraft systems; and relating
to images captured by an unmanned aircraft system." [Before the
committee is CSHB 255(STA).]
1:12:26 PM
REPRESENTATIVE LYNN moved to adopt proposed CSHB 255 Version 28-
LS1068\P, Strasbaugh, 3/4/14 as the working document.
1:12:55 PM
REPRESENTATIVE GRUENBERG objected.
1:12:59 PM
REPRESENTATIVE SHELLEY HUGHES, Alaska State Legislature, on of
the joint prime sponsors, stated there are two concerns
addressed [in Version P] The first concern was expressed by the
statewide archivist regarding how images no longer required
would be handled. The second concern addressed in Version P is
regarding unmanned aircraft used in search and rescue, but not
necessarily involved in criminal activities. This change
respects the importance of privacy and abides by the Alaska
State Constitution and U.S. Constitution, she offered.
1:14:08 PM
GINGER BLAISDELL, Staff, Representative Shelley Hughes, Alaska
State Legislature, speaking on behalf of Representative Hughes,
one of the joint prime sponsors, stated that [Version O] page 2,
lines 26-27, originally read "A law enforcement agency may use
an unmanned aircraft system to gather evidence in a criminal
investigation." The sponsors' intent in [Version P] is in the
event a search and rescue event turns into a criminal
investigation that it be admissible in court. The language on
page 3, lines 2-5, is regarding a law enforcement agency using
information gathered by an unmanned aircraft system while
enforcing personal privacy. She explained the main intent of
the Unmanned Aircraft Systems Legislative Task Force ("Task
Force") is to guard personal privacy and allow law enforcement
agencies to use unmanned aircraft systems as a tool. Version P
also addresses the concern of the statewide archivist [Dean
Dawson] regarding existing state law and the requirement to
retain images. For law enforcement purposes, Version P
specifically identifies that images may not be retained without
a law enforcement purpose to keep them. There are a number of
existing laws regarding law enforcement's custody of retained
images that explain the retention length and how the images are
to be retained. House Bill 255 instructs law enforcement to
dispose of images when performing training runs or a completed
search and rescue event.
1:16:37 PM
REPRESENTATIVE PRUITT assumed law enforcement would require only
the [images] relevant to its investigation. He questioned the
specific amount of time images not relevant to its investigation
remain in law enforcement's custody.
MS.BLAISDELL deferred to Anne Carpeneti, Assistant Attorney
General, as she is familiar with various scenarios, lengths of
time, and the type of data required to be retained.
1:18:01 PM
REPRESENTATIVE GRUENBERG directed attention to the language [in
Version P] on page 2, line 28, "to gather evidence in a criminal
investigation" and contrast it with the language on page 3,
lines 2-3, which read, "... for uses not involving a criminal
investigation and not intended to lead to the production of
evidence for use in a criminal investigation, ..." He pointed
out that technically there may be a loop hole and suggested the
language might also include on page 2, line 28, the phrase "to
gather evidence in a criminal investigation or intended to lead
to the production of evidence for use in a criminal
investigation" since [proposed A.S. 18.65.903(a)] (3) breaks it
out. He suggested to both Ms. Blaisdell and Ms. Carpeneti that
the language could potentially lead to a misinterpretation.
MS. BLAISDELL responded that the change from [CASB 255(STA)] to
"only able to be used for a criminal investigation," to the
change in [Version P] is for law enforcement's use which allows
it to be used for a general public purpose as well as a criminal
investigation. The language in Version P, page 2, line 28,
discusses the use of a warrant in a criminal investigation. The
language on page 3, [lines 2-5], (2) discusses situations and
uses not specifically involving a criminal investigation, such
as search and rescue, Amber alert, bomb squad type of use, and a
variety of issues, she explained.
1:21:26 PM
REPRESENTATIVE HUGHES surmised that Representative Gruenberg was
referring to a [search and rescue event] that turned criminal.
REPRESENTATIVE GRUENBERG clarified that he is referring to the
time before an event turned into an investigation. He advised
it was a technical question.
REPRESENTATIVE HUGHES pointed out that the language on [pages 2-
3], line 31 [and line 1, respectively], "[B]] in accordance with
the judicially recognized exemption to the warrant requirement
in AS 12:35; ..." would cover search and rescue events that
become evidential for a criminal investigation. She reiterated
that subparagraph (B) on [Page 2], line 31, would cover those
situations and questioned if that was what Representative
Gruenberg was referring to.
REPRESENTATIVE GRUENBERG responded that her comments would
normally be the case, but because the language is broken out in
[page 3, lines 4-5] there is a situation that has not yet and
never does ultimately turn into a criminal investigation. He
reiterated that this is a technical question.
REPRESENTATIVE HUGHES noted that the aforementioned language on
page 3, line [3], read "not intended to lead to the production
of evidence ..." However, she stated that was not the original
intent, but it actually could lead to [evidence].
REPRESENTATIVE GRUENBERG responded that there could be a
situation that falls between the cracks in which something was
intended to lead to the production of evidence for use in a
criminal investigation. He expressed the need to avoid an
unintended loop hole.
1:24: 21 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), said the
Department of Law is concerned that there is not a gap in law
enforcement's ability to gather evidence in cases in which it is
fair and not a violation of privacy. The desire was for law
enforcement to be able to use images obtain from drones in a
non-criminal investigation such as locating a lost individual on
a search and rescue mission, when the situation turns out to be
a crime scene. Law enforcement wants to be able to use those
photographs in the prosecution of the defendant as and there is
certainly no reasonable expectation of privacy in that
situation. She related her understanding that is the reason
paragraph (2) [on page 3, lines 2-5] was drafted. If there are
any gaps, she expressed the need to address them.
1:26:07 PM
REPRESENTATIVE GRUENBERG suggested that analytically the
language may lead to situations that do not technically fall
under one or the other scenarios. He further suggested the cure
may be to add language on [page 2,] line 28, such that paragraph
(1) would read "to gather evidence in a criminal investigation
or intended to lead to the production of evidence for use in a
criminal investigation." He explained it is similar to the
broader discovery rules in civil cases wherein a party may ask
for the production of evidence for use in the trial or evidence
that could lead to the production of evidence in a criminal
trial. This is a discovery situation and civil rules are
specifically designed so there is no gap, he opined.
MS. CARPENETI said although she thinks Representative
Gruenberg's suggested language is unnecessary, she will conduct
further research and can work with the sponsor.
CHAIR KELLER advised subsequent to Ms. Carpeneti's review any
technical change could be conducted on the House floor
REPRESENTATIVE LYNN questioned whether the inclusion of
Representative Gruenberg's language would cause any harm.
MS. CARPENETI responded that she did not believe it would cause
harm, but reiterated the language is unnecessary.
REPRESENTATIVE HUGHES offered to work with Ms. Carpeneti and if
the language is necessary it could be changed in the House Rules
Standing Committee. The Task Force does not want anything
slipping through the cracks, she opined.
1:29:54 PM
MS. CARPENETI, responding to Representative Pruitt's earlier
question, stated that the language in HB 255 has a reasonable
expectation of privacy under circumstances in which footage is
not used as it is not relevant to any criminal prosecution.
1:30:42 PM
REPRESENTATIVE PRUITT related his intention is that the footage
applies to the specific purpose for which the drone is intended
at that time. Otherwise, he expressed concern about putting
drones in the air to see if they capture images of anything
[criminal].
MS. CARPENETI responded that the focus of the Task Force is to
adopt rules that protect privacy while at the same time allow
these instruments of the future usable for [law enforcement]
when necessary.
REPRESENTATIVE PRUITT remarked that the retention piece is part
of the whole discussion in how long [law enforcement retains
data] as his concern is the time frame each of those images are
retained.
1:32:17 PM
REPRESENTATIVE LYNN inquired as to the difference between a
drone taking photographs from above and a security camera at
street level. He further inquired as to how long images from a
security camera on the street are retained.
MS. CARPENETI replied that the difference is that someone
walking down the street has less expectation of privacy than a
person at a remote cabin where there are no roads and a higher
expectation of privacy exists. Essentially, she said it depends
upon the facts and what citizens expect when performing certain
acts, as most people do not expect to be private while walking
down a street.
REPRESENTATIVE HUGHES related her understanding that images
taken with a public security camera on state buildings are
retained for 30-days. She advised that Alaska has high powered
cameras that can be attached to an unmanned aircraft, a car and
a person could carry it. The Task Force understands the
potential privacy issues and is always considering the privacy
aspect. Moreover, the Task Force realizes that the legislation
should be somewhat neutral as far as the tool because the
operator of the tool and the state must be certain the operator
is doing the right thing, no matter to what the camera is
attached. She explained that the Task Force's amendment is that
if the images are not needed that they are considered
confidential and not part of public record. She assumed the law
enforcement agencies would dispose of them immediately.
REPRESENTATIVE LYNN highlighted his overall concern that the
focus is on [the unmanned aircraft system] while there are
security cameras everywhere. He opined that he does not have an
expectation of privacy much anymore.
REPRESENTATIVE PRUITT, regarding Ms. Carpeneti's comments about
the cabin scenario, said they apply in a residential situation
also. If drones are flying over residential areas, a person in
his/her back yard should have the same expectation of privacy as
at a cabin.
1:36:50 PM
REPRESENTATIVE GRUENBERG questioned, in reference to page 2,
lines 29-30, whether a search warrant that is not issued
pursuant to state law, but issued pursuant to a federal order
should read "(A) under the express terms of a search warrant
issued under court order," rather than "AS 12.35."
MS. CARPENETI responded that Representative Gruenberg's
suggestion was excellent and one with which she completely
concurred.
1:37:51 PM
REPRESENTATIVE GRUENBERG referred to the language on pages 2-3,
lines 31 and l, respectively, "(B) in accordance with a
judicially recognized exception to the warrant requirement in AS
12.35." [The warrant] may be judicially recognized,
particularly if it is a federal warrant issued under an
exception under federal law. He expressed concern that Alaska
may have a judicially recognized exception that has never been
ruled on, but would be judicially recognized elsewhere. For
example, there could be a scenario wherein a smart lawyer
alleging "this" is judicially recognized in Nebraska and 43
other states, but has not arisen in Alaska. Therefore, he
suggested the language should not cite just the one statute [AS
12.35], but should say "recognized under law."
MS. CARPENETI responded it would be best to leave it under state
law as under federal search and seizure law there is a good
faith exception to the warrant requirement and she did not know
if Alaska's court had adopted it yet. The [use of an unmanned
aircraft system by a law enforcement agency] would be best tied
to judicially recognized exceptions under state law, she
remarked.
1:41:00 PM
REPRESENTATIVE GRUENBERG suggested a conceptual amendment in
which on page 2, lines 29-30, the language "... AS 12.35" would
be replace with the following language "... a valid court
order."
MS. CARPENETI responded that although it is difficult for her to
imagine Alaska going to another court to obtain a court order to
allow Alaska to perform drone surveillance, a court order is
fine because it is more general. At the same time, she related
the preference to limit the judicially recognized exceptions to
state law exceptions.
1:42:43 PM
REPRESENTATIVE GRUENBERG questioned Ms. Carpeneti as to whether
she had any problem with the committee substitute.
MS. CARPENETI responded no, noting that she has had been an
excellent working relationship with the sponsor and her staff.
1:43:05 PM
REPRESENTATIVE GRUENBERG removed his objection to adopting CSHB
255, Version P. There being no further objection, Version P was
before the committee.
CHAIR KELLER closed public testimony and stated CSHJR 33(JUD)
Version P is before the committee for discussion.
1:44:04 PM
REPRESENTATIVE GRUENBERG moved Conceptual Amendment 1, as
follows:
Page 2, line 30
Delete "AS 12.35"
Insert "court order"
1:44:32 PM
CHAIR KELLER objected and requested that the sponsor work with
DOL in the event there is a problem with the language of
Conceptual Amendment 1. Chair Keller then removed his
objection. There being no further objection, Conceptual
Amendment 1 was adopted.
1:45:07 PM
REPRESENTATIVE LYNN move to report CSHB 255 (JUD), 28-LS1068\P,
Strasbaugh, 3/4/14, as amended, out of committee with individual
recommendations and the accompanying fiscal notes. There being
no further objection CSHB 255(JUD) was reported from the House
Judiciary Standing Committee.
1:45:26 PM
The committee took an at ease from 1:45 p.m. to 1:48 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HJR 33 Ken Kreitzer Written Testimony.pdf |
HJUD 3/7/2014 1:00:00 PM |
HJR 33 |
| CSHJR 33 (JUD) Proposed Draft.pdf |
HJUD 3/7/2014 1:00:00 PM |
HJR 33 |
| HJR 33 Letter of Opposition~Robert Bundy.pdf |
HJUD 3/7/2014 1:00:00 PM |
HJR 33 |
| HJR 33 AK Court System Email re March 6 Testimony.pdf |
HJUD 3/7/2014 1:00:00 PM |
HJR 33 |
| HB255 Letter of Support~City of Fairbanks.pdf |
HJUD 3/7/2014 1:00:00 PM |
HB 255 |