Legislature(2005 - 2006)

03/22/2006 02:09 PM JUD


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 414 - INTERCEPTION OF MINOR'S COMMUNICATIONS                                                                               
                                                                                                                                
2:10:05 PM                                                                                                                    
                                                                                                                                
CHAIR McGUIRE  announced that the  first 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."  [Before                                                               
the committee was CSHB 414(HES).]                                                                                               
                                                                                                                                
2:10:32 PM                                                                                                                    
                                                                                                                                
MICHAEL O'HARE,  Staff to Representative Pete  Kott, Alaska State                                                               
Legislature, sponsor, said on behalf  of Representative Kott that                                                               
they've had an  opportunity to research one of  the issues raised                                                               
at the bill's  last hearing by Representative  Gruenberg, that of                                                               
how a parent's ability to  intercept a minor's communication - as                                                               
provided  for via  HB  414  - could  impact  family law  disputes                                                               
pertaining  to  divorce  and child  custody,  and  that  members'                                                               
packets now contain responses from  questions posed to the Alaska                                                               
Bar Association on that issue.   Some responses predict unbridled                                                               
eavesdropping, recording, and  interference in wholly appropriate                                                               
communications  between  children  and  visitation  or  custodial                                                               
parents, while others predict violations of privacy.                                                                            
                                                                                                                                
MR. O'HARE relayed that the  sponsor has attempted to establish a                                                               
balance between  the [right of]  privacy and the need  to protect                                                               
[Alaska's]   children.      Mr.   O'Hare   mentioned   that   the                                                               
aforementioned  responses  come  from  attorneys with  a  lot  of                                                               
experience  in   family  law,   though  he   characterized  those                                                               
responses  as simply  speculations  regarding  what might  happen                                                               
should  HB 414  pass.    The sponsor,  he  noted, also  requested                                                               
information from Legislative Legal  and Research Services on this                                                               
issue,   and  the   resulting  memorandum   [by  Chuck   Burnham,                                                               
Legislative Analyst, dated March 21,  2006 - included in members'                                                               
packets -]  states that in  the six years  that a similar  law in                                                               
Georgia has  been in place there  has been no evidence  that that                                                               
law has  been abused.   Mr.  O'Hare said he  would be  willing to                                                               
speculate that passage  of HB 414 may  actually encourage parents                                                               
involved in divorce and child  custody proceedings to be civil to                                                               
each other.                                                                                                                     
                                                                                                                                
MR. O'HARE  said that the  goal of HB  414 is to  provide parents                                                               
with a way of monitoring  their children without breaking the law                                                               
and without them spending time  and money arguing the legality of                                                               
intercepting their communications.                                                                                              
                                                                                                                                
[Following was a  brief discussion regarding what  version of the                                                               
bill was before the committee.]                                                                                                 
                                                                                                                                
The committee took an at-ease from 2:15 p.m. to 2:16 p.m.                                                                       
                                                                                                                                
CHAIR  McGUIRE   clarified  that  both  [CSHB   414(HES)]  and  a                                                               
forthcoming amendment  were before the committee;  [later labeled                                                               
Amendment 1], that proposed  amendment read [original punctuation                                                               
provided]:                                                                                                                      
                                                                                                                                
     Page 4, after line 5, add:                                                                                                 
     (12)  "parent"  means  a  natural  person  who  is  not                                                                    
     prohibited by  court order from communicating  with the                                                                    
     minor and is the minor's  natural or adoptive parent of                                                                    
     the minor's  legally appointed guardian;  "parent" does                                                                    
     not include  a person whose parental  rights toward the                                                                    
     minor have been terminated by court order.                                                                                 
                                                                                                                                
MR.  O'HARE, in  response to  questions, explained  that although                                                               
the original  Legislative Research Report written  by Mr. Burnham                                                               
- Report  Number 06.130, -  made use  of an annotated  version of                                                               
the aforementioned Georgia  statute, the aforementioned follow-up                                                               
memorandum of  March 21, 2006,  is based on  information gathered                                                               
from  several  databases  and conversations  with  the  state  of                                                               
Georgia.                                                                                                                        
                                                                                                                                
REPRESENTATIVE GRUENBERG pointed out  that although the March 21,                                                               
2006, memorandum  says in  part, "We found  no evidence  that the                                                               
Georgia court  system has been  inundated with  vicarious consent                                                               
recordings in  divorce proceedings since the  state's wiretapping                                                               
laws were  amended in the  year 2006  to allow parents  to record                                                               
their  child's   conversations  in  certain   circumstances",  it                                                               
doesn't state  what research steps  were taken to arrive  at that                                                               
conclusion.   His concern,  he relayed,  is that  that conclusion                                                               
could be based only on the  reported cases the publisher chose to                                                               
list  in  the  Georgia  law's annotations,  and  therefore  won't                                                               
include  information  found in  even  just  "the digests,"  which                                                               
themselves only contain those cases  in which that specific issue                                                               
was taken to the appellate  court and which subsequently issued a                                                               
publishable opinion.                                                                                                            
                                                                                                                                
REPRESENTATIVE GRUENBERG said:                                                                                                  
                                                                                                                                
     A lot  of the  opinions in most  of these  courts, now,                                                                    
     including  Alaska,   are  ...  Memorandum   Orders  and                                                                    
     Judgment;  they're never  published, they  do not  find                                                                    
     their  way into  the reported  decisions at  all.   And                                                                    
     what  I am  saying  and what  these  other lawyers  are                                                                    
     saying  [is] ...,  what happens  in  the actual  trials                                                                    
     that  would never  show up  unless you  really made  an                                                                    
     extreme  investigation of  the entire  Georgia bar  and                                                                    
     the superior  court benches.  ... Unless  [Mr. Burnham]                                                                    
     has done  that, he does  not have the kind  of evidence                                                                    
     that   these  lawyers   who  have   dozens  of   year's                                                                    
     experience  have,  and  ... we  are  all  unanimous  in                                                                    
     finding problems with this.                                                                                                
                                                                                                                                
REPRESENTATIVE GRUENBERG  then mentioned that he  would be making                                                               
a  motion to  strike  "the  final section  of  the  bill and  the                                                               
conforming thing"  because "this" is  going to find its  way into                                                               
divorce courts all over the state.                                                                                              
                                                                                                                                
CHAIR McGUIRE  observed that  a consensus on  this issue  has not                                                               
been reached.                                                                                                                   
                                                                                                                                
2:20:15 PM                                                                                                                    
                                                                                                                                
DAVID  W.  BARANOW, Attorney  at  Law,  Law  Office of  David  W.                                                               
Baranow - after  relaying that he has two children,  has sent Mr.                                                               
O'Hare an  e-mail containing his  comments on the bill,  and that                                                               
he  practices family  law -  assured  the committee  that he  and                                                               
other family  law attorneys are  not speculating when  they speak                                                               
to the  issue of either intentional  or inadvertent eavesdropping                                                               
occurring [in  situations involving  divorce and  child custody].                                                               
He elaborated:                                                                                                                  
                                                                                                                                
     Hundreds if  not thousands  of times  over my  26- year                                                                    
     career  we  are faced  with  [a]  superior court  judge                                                                    
     admonishing,   ordering,   [and]  holding   people   in                                                                    
     contempt for intentionally  interfering with telephonic                                                                    
     communication  between children  and divorced  parents.                                                                    
     I think that the intent of  this bill to provide a tool                                                                    
     to avoid predation  on our children is  laudable, and I                                                                    
     applaud  it.   From  ...  a  family law  practitioner's                                                                    
     perspective, it is  rife with a great  deal of problems                                                                    
     and concerns.   The  language of  the bill  itself, the                                                                    
     version that I  was able to review, is  couched in very                                                                    
     broad  terms:   "good  faith", "best  interests of  the                                                                    
     child", [and] "good faith belief".                                                                                         
                                                                                                                                
     In  practice what  that means  is that  we're going  to                                                                    
     have  parents   that  are   going  to   be  restricting                                                                    
     communications.   It is not  speculation.  I  deal with                                                                    
     this  all  the  time.   And  ...  in  another  context,                                                                    
     intercepting,  monitoring  this kind  of  communication                                                                    
     between other third  parties would be a  class C felony                                                                    
     in our state.   Why is it not the  same for parents and                                                                    
     children?  Taking it to  its worst extreme:  What about                                                                    
     the  child that  is abused  or is  being abused  in the                                                                    
     household and the  only place that they can  turn is to                                                                    
     the  noncustodial  parent.   If  they  know that  their                                                                    
     conversations  are   going  to  be   taped,  monitored,                                                                    
     interfered  with, it's  a huge  chilling effect  on the                                                                    
     ability  of  that  child  to  be  able  to  relate  the                                                                    
     problems that are going on in the home.                                                                                    
                                                                                                                                
     And  certainly there  are other  places they  can go  -                                                                    
     teachers, medical-care  providers, and  the like  - but                                                                    
     it  is  a  mistake,  in   my  opinion,  to  chill  that                                                                    
     communication   avenue   for    the   child   and   the                                                                    
     noncustodial parent.   There is abuse -  it's rampant -                                                                    
     and   I  certainly   would   join  in   [Representative                                                                    
     Gruenberg's] opinions,  here.   I don't know  where the                                                                    
     research  was from;  if you  look  at the  annotations,                                                                    
     that's not going to tell  what happens down here in the                                                                    
     trenches.                                                                                                                  
                                                                                                                                
     And that's why  I wanted to take the time  ... [to say]                                                                    
     that if  this bill needs  to go forward, ...  I suggest                                                                    
     strongly  that you  look into  the  issue of  custodial                                                                    
     parent  interference  with communications,  and  either                                                                    
     fashion some protection in that  regard or take another                                                                    
     look at the  practical impact of this bill.   Thank you                                                                    
     very much.                                                                                                                 
                                                                                                                                
2:23:50 PM                                                                                                                    
                                                                                                                                
ALLEN  M.  BAILEY, Attorney  at  Law,  Law  Offices of  Allen  M.                                                               
Bailey,  after   noting  that  he's   provided  Mr.   O'Hare  and                                                               
Representative Gruenberg with an  e-mail containing his comments,                                                               
opined that  there are two problems  with HB 414, adding  that he                                                               
is not  sure whether  either of  them can be  easily solved.   He                                                               
elaborated:                                                                                                                     
                                                                                                                                
     The first problem  I see as a lawyer ...  is that if we                                                                    
     have  a court  issuing ...  what amounts  to a  private                                                                    
     search  warrant  to  intercept  the  communications  of                                                                    
     another person, the court is  granting a search warrant                                                                    
     without  probable cause  to believe  that  a crime  has                                                                    
     been  committed, and  I  believe that  would  be ...  a                                                                    
     violation of  both the [U.S.  Constitution] as  well as                                                                    
     the  Alaska State  Constitution's  even higher  privacy                                                                    
     guarantees. ...  I've been  a lawyer  in Alaska  for 32                                                                    
     years, and  the majority of  my clients are  victims of                                                                    
     domestic abuse, and there are  many [children] in these                                                                    
     families that are also abused.                                                                                             
                                                                                                                                
     I'm  concerned   that  an  abusive  parent   would,  in                                                                    
     essence,  remove  the  ability  of a  child  to  report                                                                    
     domestic violence or sexual abuse  that is occurring in                                                                    
     the  home whether  there  has been  a  divorce or  not.                                                                    
     There are  many victims  of domestic violence  who have                                                                    
     not  yet left  their  partners; some  of  them are  too                                                                    
     frightened  to do  so because  the research  shows that                                                                    
     the   likelihood  of   domestic  violence   and  severe                                                                    
     domestic violence  increases dramatically at  about the                                                                    
     time of separation.  So these  may be in so called "in-                                                                    
     tact families" where one of  the parents is abusing the                                                                    
     other and possibly one of the children.                                                                                    
                                                                                                                                
     This would  permit such a  parent to  maintain absolute                                                                    
     control over  all communications leaving the  home, and                                                                    
     in  essence enable  that parent  to prohibit  the child                                                                    
     from calling  for help.  I  think it's a bill  that was                                                                    
     drafted  for a  good reason,  because of  problems that                                                                    
     have  occurred across  the  country  with minors  being                                                                    
     victimized  by  people  they  meet  through  electronic                                                                    
     communications,  but I  don't  think this  is how  that                                                                    
     problem is solved.  Thank you.                                                                                             
                                                                                                                                
CHAIR McGUIRE  said she hopes that  people can see that  the bill                                                               
is  motivated in  part  by a  desire  to do  what's  in the  best                                                               
interest  of the  child.   She  asked Mr.  Bailey  what he  would                                                               
suggest  to  address the  perceived  problem.   Ought  they,  for                                                               
example,  preclude  the  interception of  private  communications                                                               
between  children  and  parents  that  are  involved  in  custody                                                               
hearings or divorces?                                                                                                           
                                                                                                                                
2:28:30 PM                                                                                                                    
                                                                                                                                
MR. BAILEY  said he  shares concerns  about children  being drawn                                                               
into inappropriate  relationships and  contacts via  telephone or                                                               
Internet  communications, but  he has  not been  able to  come up                                                               
with a solution that could be easily incorporated into the bill.                                                                
                                                                                                                                
CHAIR  McGUIRE, surmising  that members  are struggling  with the                                                               
fact that  the concept  of the  bill is  in part  appealing, also                                                               
acknowledged the problem as Mr. Bailey presented it.                                                                            
                                                                                                                                
REPRESENTATIVE GRUENBERG,  referring to the Fourth  Amendment and                                                               
the  Alaska  State Constitution's  right  of  privacy, asked  Mr.                                                               
Bailey  and  Mr.  Baranow whether  they  see  any  constitutional                                                               
problems with  Section 3 of the  bill, the section that  allows a                                                               
parent  to intercept  phone calls  between  a child  and a  third                                                               
party without a warrant.                                                                                                        
                                                                                                                                
MR. BAILEY  opined that if  a court  is allowed to  grant private                                                               
search warrants  on less  than probable cause  to believe  that a                                                               
crime  is being  committed,  "we are  in perilous  constitutional                                                               
waters."   If the  bill were  drafted to  permit the  issuance of                                                               
some sort  of court order  upon a  higher degree of  showing that                                                               
there is reasonable  cause to believe that  someone is attempting                                                               
to commit a crime against a  child, then that might eliminate the                                                               
possibility of a constitutional challenge to the bill.                                                                          
                                                                                                                                
REPRESENTATIVE GRUENBERG indicated that  he is concerned that the                                                               
language   in  proposed   AS   42.20.320(a)(9)   will  allow   an                                                               
interception to take place without any search warrant at all.                                                                   
                                                                                                                                
2:32:28 PM                                                                                                                    
                                                                                                                                
MICHAEL   C.  KRAMER,   Attorney  at   Law,  Cook,   Schuhmann  &                                                               
Groseclose,  Inc.,  noting that  he  is  a family  law  attorney,                                                               
indicated that  he would  be testifying in  opposition to  HB 414                                                               
for a number of reasons.   He predicted that the bill will mostly                                                               
be  utilized by  parents  involved in  separations, divorces,  or                                                               
child  custody battles  as free  rein  to surreptitiously  record                                                               
contacts between their child and  the other parent, and result in                                                               
those  recordings  being  used  [and  abused]  in  court  without                                                               
prohibition  and  to children  being  directly  involved in  such                                                               
disputes.   Although  the bill  has the  stated intent  of giving                                                               
parents a  tool with which to  protect children, it goes  too far                                                               
and will cause  many problems without addressing  the one problem                                                               
that the bill seeks to solve.                                                                                                   
                                                                                                                                
MR. KRAMER  mentioned that  he also has  concerns about  the bill                                                               
from a civil  libertarian perspective, in that  it will authorize                                                               
parents to  intrude upon the privacy  of anyone under the  age of                                                               
18;  parents could  routinely record  conversations  a child  has                                                               
whether  it be  with the  other parent  or with  peers or  with a                                                               
counselor  notwithstanding the  provision  precluding  such.   He                                                               
opined that children do have  a reasonable expectation of privacy                                                               
that  their phone  calls  will  not be  monitored  or that  their                                                               
parents will not authorize law enforcement  to put a tap on their                                                               
phones and  Internet e-mails; such use  of HB 414 will  lead to a                                                               
breakdown  in trust  between parents  and children,  thus leading                                                               
children  to  believe that  they  can't  trust their  government.                                                               
Although the bill  has a noble purpose, he remarked,  it goes too                                                               
far, erodes  the constitutional rights of  everyone involved, and                                                               
would be misused and abused  in the legal system, particularly in                                                               
divorce and domestic violence proceedings.                                                                                      
                                                                                                                                
REPRESENTATIVE GARA indicated that  although he originally shared                                                               
Mr. Kramer's  concerns, he is  now leaning towards  the sponsor's                                                               
view that  a parent's desire  to protect his/her  child outweighs                                                               
the child's desire  to have independence.  He said  he would like                                                               
it if  an amendment could be  crafted that would protect  a child                                                               
from  vindictive parents  going through  a divorce,  but if  such                                                               
parents are  already at the  point where  they are willing  to be                                                               
vindictive,  then merely  telling them  they can't  be vindictive                                                               
through  recording their  child's  conversations  with the  other                                                               
parent won't make them good  parents - those parents have already                                                               
crossed the line between protecting  a child's best interests and                                                               
not  doing  so,   and  therefore  the  recording   of  a  child's                                                               
conversations won't be  the child's biggest problem.   Perhaps an                                                               
amendment later  on in  the process  will be  helpful, but  he is                                                               
unable to conceive of one at this time, he concluded.                                                                           
                                                                                                                                
2:39:27 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG  offered  his  understanding  that  the                                                               
courts  have  said  that  as  a health  issue,  children  have  a                                                               
constitutional  right  to   certain  medical  procedures  without                                                               
consulting with  his/her parents  - a right  of privacy  in their                                                               
own bodies so to speak.  So  if a child whose parents are warring                                                               
is caught  in the middle because  his/her telephone conversations                                                               
are  intercepted, it  could have  a real  effect on  that child's                                                               
health   and   mental   wellbeing,    and   therefore,   from   a                                                               
constitutional right of privacy point  of view, it seems that the                                                               
courts would rule on this issue in the same way.                                                                                
                                                                                                                                
MR. BAILEY concurred,  reiterating his belief that  the bill will                                                               
run  afoul   of  the  privacy   guarantees  of  both   the  [U.S.                                                               
Constitution] and  the Alaska State  Constitution.  The  right of                                                               
privacy is an important right not to be taken lightly.                                                                          
                                                                                                                                
MR. BARANOW  said he would echo  the comments of both  Mr. Bailey                                                               
and Representative  Gruenberg, that  the bill would  be abridging                                                               
the  privacy rights  guaranteed by  both the  [U.S. Constitution]                                                               
and the Alaska  State Constitution.  The point  of [his concerns]                                                               
is  to preserve  an  essential privacy  link  between parent  and                                                               
child.   He predicted that the  adoption of HB 414  will generate                                                               
significant appellate  litigation, and  that privacy  rights will                                                               
prevail.                                                                                                                        
                                                                                                                                
CHAIR McGUIRE  offered her recollection  that the court  looks at                                                               
privacy rights a  bit differently when they  pertain to children.                                                               
She went  on to  say that  she keeps  envisioning a  situation in                                                               
which  there  is a  predator  or  a drug  dealer  -  a very  real                                                               
situation that occurs all the  time - in communication with one's                                                               
child, and  the parent  is going  to want to  go through  the law                                                               
enforcement  process in  order to  obtain evidence  and prosecute                                                               
that  person; that's  the sort  of  situation that  sways her  in                                                               
favor of the bill.  She  offered her hope that judges and parents                                                               
will exercise some discretion.                                                                                                  
                                                                                                                                
MR. KRAMER  offered his understanding  that a "Glass  warrant" is                                                             
routinely  used  in  situations where  the  police  believe  that                                                               
someone  is going  to make  an incriminating  statement over  the                                                               
phone; the police can go to  a judge, present probable cause that                                                               
such a conversation  is going to occur, and they  can then record                                                               
that  phone  conversation  pursuant  to  a  Glass  warrant.    He                                                             
suggested that Glass warrants could  be used as an alternative to                                                             
what's being  proposed in  HB 414, which  he characterized  as an                                                               
"entirely  new invasion  of privacy  and  abrogation of  parental                                                               
rights."  There  are already many entirely  legal tools available                                                               
for parents to  monitor their children, he opined:   a parent can                                                               
get a  child's cell phone  records, and  read and review  all the                                                               
web sites that  the child is perusing.  "I  don't agree that this                                                               
bill is going  to strengthen families or  ... effectively prevent                                                               
criminals  from   contacting  our   children,"  he   stated,  and                                                               
reiterated his  suggestion that Glass  warrants could be  used to                                                             
address   the  concerns   about   predators  communicating   with                                                               
children.                                                                                                                       
                                                                                                                                
2:47:13 PM                                                                                                                    
                                                                                                                                
CHAIR McGUIRE  agreed, but pointed  out that most  parents aren't                                                               
aware of  the existence of  Glass warrants; furthermore,  a Glass                                                           
warrant  would only  be suitable  in situation  where there  is a                                                               
likelihood that the communications will be ongoing.                                                                             
                                                                                                                                
REPRESENTATIVE GRUENBERG  suggested that  one way of  curing [his                                                               
and others'  concerns] would be to  delete section 3 -  which, he                                                               
remarked, allows  rampant wiretapping - and  then simply focusing                                                               
on Section  1, which, in the  context of a criminal  case, allows                                                               
the court to consider an  application asking for authorization to                                                               
intercept  a  communication.    He indicated  that  he  would  be                                                               
willing to  offer a conceptual  amendment "to allow a  warrant to                                                               
issue on probable cause," and  to allow the [underlined] language                                                               
to constitute probable cause.  In  other words, if the parent, in                                                               
good faith  and with an  objectively reasonable belief  that it's                                                               
necessary,  signs  an  affidavit,   then  that  "may"  constitute                                                               
probable  cause;   leave  it  up  to   judicial  discretion,  but                                                               
specifically  state  that  that  may,  in  an  appropriate  case,                                                               
constitute probable cause.  Recognize,  however, that if there is                                                               
an  emergency -  for example,  a parent  overhears his/her  child                                                               
being told by  someone to meet him/her down the  street and bring                                                               
a  [suitcase] -  then the  "law of  warrant-less searches"  would                                                               
allow the parent  to contact the police and have  the police take                                                               
action.   He suggested that  reference to that "law,"  could also                                                               
be incorporated into the bill.                                                                                                  
                                                                                                                                
2:51:03 PM                                                                                                                    
                                                                                                                                
SENATOR FRED DYSON, Alaska State  Legislature, concurred with the                                                               
comments expressed by Representative Gara,  and opined that it is                                                               
important  to  protect a  parent's  right  to know  what  his/her                                                               
children are doing and what they're  involved in.  He pointed out                                                               
that some children  are actually perpetrators, and  so being able                                                               
to know  that about  one's children  is valuable.   He  relayed a                                                               
personal  example wherein  unbeknownst to  him a  foster daughter                                                               
living  in  his  home  embezzled  money  from  two  men  she  was                                                               
"servicing"  as a  prostitute, and  another  situation wherein  a                                                               
young  girl living  with his  daughter was  selling OxyContin  at                                                               
school and  in the  neighborhood and  was "hooking"  and bringing                                                               
"johns" into  his daughter's  home.  A  parent's ability  to know                                                               
about this sort of behavior,  whether conducted by a foster child                                                               
or a birth child, is  critical, particularly if there are younger                                                               
children in the  home.  He encouraged the committee  to come down                                                               
on the  side of  letting parents  have the  ability to  know what                                                               
their  children   are  doing,   and  to  realize   that  children                                                               
themselves will  do very bad  things including  molesting younger                                                               
children and setting homes on fire.                                                                                             
                                                                                                                                
CHAIR  McGUIRE, after  ascertaining that  no one  else wished  to                                                               
testify, closed public testimony on HB 414.                                                                                     
                                                                                                                                
2:54:01 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  KOTT made  a motion  to adopt  Amendment 1  [text                                                               
provided previously].  There being  no objection, Amendment 1 was                                                               
adopted.                                                                                                                        
                                                                                                                                
2:55:10 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG  made  a  motion  to  adopt  Conceptual                                                               
Amendment 2:   on page 1,  line 8, after "order",  add the words,                                                               
"based  upon probable  cause";  and  on page  1,  line 9,  after,                                                               
"application,"  add the  words,  "that there  is probable  cause,                                                               
which may include a finding".                                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG explained that  his intent is to specify                                                               
in the  bill that the  underlined language  may in and  of itself                                                               
constitute probable cause,  that the court may find  that that is                                                               
the  only probable  cause,  and,  if so,  that  would be  legally                                                               
sufficient; the underlined language  being, "a parent or guardian                                                               
of a minor  has consented to the interception  of a communication                                                               
of  the  minor  in  good   faith  and  based  on  an  objectively                                                               
reasonable belief  that it  is necessary for  the welfare  of the                                                               
minor and in the best interest of the minor or that".                                                                           
                                                                                                                                
CHAIR  McGUIRE  surmised, then,  that  the  intent of  Conceptual                                                               
Amendment  2  is to  allow  judicial  discretion in  a  situation                                                               
involving  a contentious  divorce battle  or a  contentious child                                                               
custody battle.                                                                                                                 
                                                                                                                                
REPRESENTATIVE GRUENBERG concurred.                                                                                             
                                                                                                                                
REPRESENTATIVE GARA objected for the purpose of discussion.                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG,  in response  to a  question, explained                                                               
that via Conceptual  Amendment 2, the standard  of probable cause                                                               
would  apply   as  would  the   underlined  language,   and  that                                                               
underlined language  could be  sufficient, in  and of  itself, to                                                               
constitute probable  cause.  He said  the reason he is  not being                                                               
more specific with the language in  the bill is that he wants the                                                               
judge to be able to question  the reasoning behind the request on                                                               
a case-by-case basis.   In response to another  question, he said                                                               
he intends for the judge to  have the discretion to turn down the                                                               
request if  the facts in  the affidavit are insufficient,  but if                                                               
it can be  established via the affidavit that  an interception is                                                               
necessary for  the welfare of the  minor and in the  minor's best                                                               
interest, it will be allowed.                                                                                                   
                                                                                                                                
CHAIR   McGUIRE   offered   her  understanding,   however,   that                                                               
Conceptual Amendment  2 would  mandate the  issuance of  an order                                                               
authorizing  the interception  of  the  minor's communication  as                                                               
long as  the application is  made in good  faith and based  on an                                                               
objectively reasonable  belief that an interception  is necessary                                                               
for the welfare of the minor and in the minor's best interest.                                                                  
                                                                                                                                
REPRESENTATIVE GRUENBERG  offered that  under the  bill's current                                                               
language, there is  no requirement of probable  cause even though                                                               
that is  a constitutional requirement.   The concept  of probable                                                               
cause means  that the jury  could find,  based upon the  facts of                                                               
the affidavit,  a certain  fact.   And under  that constitutional                                                               
requirement, there  must be judicial  discretion.  He said  he is                                                               
only proposing to put that  requirement in there, that there must                                                               
be  a  finding  of  probable   cause  such  that  there  is  some                                                               
underlying fact that could be supported in a court of law.                                                                      
                                                                                                                                
CHAIR McGUIRE said  she is fine with that  concept, but suggested                                                               
that Representative Kott  follow how the courts end  up using the                                                               
proposed language  in order to  see whether that use  conforms to                                                               
his intent.  She posited  that adoption of Conceptual Amendment 2                                                               
will help  the bill meet  constitutional muster better  and allow                                                               
for judicial  discretion.  She added  that her intent is  that as                                                               
long as  all the  criteria outlined  in Section  1 as  amended by                                                               
Conceptual  Amendment  2   are  met,  then  an   order  would  be                                                               
authorized.                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG said that is his intent as well.                                                                       
                                                                                                                                
REPRESENTATIVE  GARA  pointed  out   that  the  proposed  statute                                                               
already  provides for  judicial  discretion  because language  on                                                               
page 1, line 7, says "may",  not "shall".  He offered his belief,                                                               
however,  that  Conceptual  Amendment  2    -  specifically,  the                                                               
language that is being proposed as  an addition to page 1, line 9                                                               
- will  allow the courts to  grant wiretaps even more  often than                                                               
the sponsor intends.                                                                                                            
                                                                                                                                
REPRESENTATIVE  GARA suggested  that  Conceptual  Amendment 2  be                                                               
limited to  the change  proposed to  line 8  and not  include the                                                               
change proposed to line 9.                                                                                                      
                                                                                                                                
REPRESENTATIVE  GRUENBERG  pointed  out, though,  that  currently                                                               
under  a  Glass  warrant,  there could  be  probable  cause  that                                                             
doesn't involve the testimony of a  parent at all, and he doesn't                                                               
want to eliminate that possibility.                                                                                             
                                                                                                                                
3:06:51 PM                                                                                                                    
                                                                                                                                
CHAIR McGUIRE asked whether there  were any further objections to                                                               
Conceptual Amendment  2.  There being  none, Conceptual Amendment                                                               
2 was adopted.                                                                                                                  
                                                                                                                                
3:07:03 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG made  a motion to adopt  Amendment 3, to                                                               
delete  the  all the  language  beginning  on  page 2,  line  18,                                                               
onward.                                                                                                                         
                                                                                                                                
CHAIR  McGUIRE sought  clarification  that  it is  Representative                                                               
Gruenberg's  intent to  delete the  definition [provided  for via                                                               
Section 4 and Amendment 1].                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG  indicated that he  did intend to  do so                                                               
because  [it is  his  understanding] that  that definition  would                                                               
only apply to Title 42 as a conforming change.                                                                                  
                                                                                                                                
CHAIR  McGUIRE clarified,  then,  that Amendment  3 would  delete                                                               
Sections 3 and 4 of HB 414.                                                                                                     
                                                                                                                                
REPRESENTATIVE  KOTT objected,  adding  his  belief that  without                                                               
Sections  3 and  4  of  the bill,  there  will  still be  parents                                                               
recording their  children's conversation but they  would be doing                                                               
so illegally.   With regard to communications  occurring over the                                                               
Internet, although  there is software available  that would allow                                                               
a  parent  to  monitor  his/her   child's  Internet  usage,  such                                                               
software would  not be usable for  most parents.  He  pointed out                                                               
that the  bill was engendered  by a custodial situation  in which                                                               
the  child's behavior  was changing  dramatically,  and when  the                                                               
parent  [recorded] the  conversations the  child was  having with                                                               
the  other parent,  the parent  found that  there was  a "lot  of                                                               
mischief going on," and had that  gone on any longer, there would                                                               
have been irreparable psychological damage done to the child.                                                                   
                                                                                                                                
REPRESENTATIVE  KOTT  opined  that  from the  standpoint  of  the                                                               
child's welfare, the parent ought  to have the ability to monitor                                                               
his/her  child's conversations  regardless  of  whether they  are                                                               
with a predator or the other parent.                                                                                            
                                                                                                                                
REPRESENTATIVE  GRUENBERG  said he  is  very  troubled about  the                                                               
constitutional issue  raised by  the bill, but  acknowledged that                                                               
perhaps  the  situation  that   engendered  the  legislation  did                                                               
warrant  the   recording  of  the  child's   conversations.    He                                                               
suggested that perhaps  one way of solving the issue  would be to                                                               
have some  sort of  requirement that there  be an  application to                                                               
the court for  an order - perhaps ex parte,  perhaps not - either                                                               
in advance or  at least immediately after a recording  is taken -                                                               
in other words,  asking that the court issue  a retroactive order                                                               
- authorizing the recording.                                                                                                    
                                                                                                                                
REPRESENTATIVE  KOTT  said  he  would be  willing  to  work  with                                                               
Representative Gruenberg  on that  idea before  the bill  goes to                                                               
the House floor.                                                                                                                
                                                                                                                                
REPRESENTATIVE GRUENBERG withdrew Amendment 3.                                                                                  
                                                                                                                                
3:15:24 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  ANDERSON  moved  to   report  CSHB  414(HES),  as                                                               
amended, out  of committee  [with individual  recommendations and                                                               
the accompanying fiscal notes].                                                                                                 
                                                                                                                                
CHAIR McGUIRE stated that there  was an objection for the purpose                                                               
of discussion.                                                                                                                  
                                                                                                                                
REPRESENTATIVE WILSON  asked that  Representative Kott  also give                                                               
consideration  to possibly  adding  language  that would  prevent                                                               
situations in  which these recordings  are used to put  the child                                                               
in  the middle  of a  divorce  [or custody  battle], because  she                                                               
would like protect the child from such misuse.                                                                                  
                                                                                                                                
REPRESENTATIVE  GRUENBERG  suggested that  Representative  Wilson                                                               
assist he and the sponsor in developing such language.                                                                          
                                                                                                                                
REPRESENTATIVE KOTT  pointed out  that regardless of  whether the                                                               
bill progresses, there  will still be parents who  will put their                                                               
children in the middle of their fights with each other.                                                                         
                                                                                                                                
3:17:51 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE WILSON removed her objection.                                                                                    
                                                                                                                                
CHAIR McGUIRE asked whether there  were any further objections to                                                               
the motion to  report CSHB 414(HES), as  amended, from committee.                                                               
There  being none,  CSHB  414(JUD) was  reported  from the  House                                                               
Judiciary Standing Committee.                                                                                                   
                                                                                                                                

Document Name Date/Time Subjects