Legislature(2005 - 2006)
03/22/2006 02:09 PM JUD
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* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.