Legislature(2003 - 2004)
02/11/2003 08:00 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 52 - SEX CRIME AND PORNOGRAPHY FORFEITURES Number 2240 CHAIR WEYHRAUCH announced that the next order of business was HOUSE BILL NO. 52, "An Act relating to the forfeiture of property used to possess or distribute child pornography, to commit indecent viewing or photography, to commit a sex offense, or to solicit the commission of, attempt to commit, or conspire to commit possession or distribution of child pornography, indecent viewing or photography, or a sexual offense." Number 2260 REPRESENTATIVE McGUIRE, Alaska State Legislature, sponsor of HB 52, told the committee that former Representative Joe Hayes had introduced this bill in the [Twenty-Second Alaska State Legislature]. She said the bill would be a tool to aid law enforcement in cracking down on pedophiles. She paraphrased a section of her sponsor statement [included in the committee packet], which read as follows: It is becoming far more common for pedophiles to seek new victims through online chat rooms and e-mail and for child pornography profiteers to use these technologies as a means to distribute their materials. HB 52 will provide the state courts and law enforcement agencies another tool to combat these sexual predators by giving the courts additional punitive sentencing options and, in turn, awarding forfeited computer technology back to law enforcement agencies for ongoing monitoring operations. REPRESENTATIVE McGUIRE noted that the clear focus of the bill is to help the victims in these cases. Furthermore, it would also help law enforcement keep up with ever-changing technology and have the ability to use that technology to figure out how the offenders commit the crimes. REPRESENTATIVE McGUIRE indicated the following additional names of cosponsors would be added to the bill: Representatives Kapsner, Stoltze, Cissna, Weyhrauch, and Wilson. Number 2450 REPRESENTATIVE McGUIRE, in response to questions from Representative Berkowitz, confirmed that [HB 52] is the same bill that was introduced by [former] Representative Hayes. REPRESENTATIVE BERKOWITZ asked if the substance of [HB 52] is the same as in "the bill that passed the House last year." REPRESENTATIVE McGUIRE said yes. Number 2500 REPRESENTATIVE SEATON referred to the bottom of page 1 [of the bill] and asked Representative McGuire to explain how the confiscation of equipment would effect a public library, for example, if someone used its equipment [to commit a crime]. REPRESENTATIVE McGUIRE said no, a public library's equipment would not be [confiscated]. She indicated State v. Rice [on page 1, line 13 of HB 52], and said it stood as an example of a case that afforded a person who is "later deemed innocent" the right to get back his/her equipment. She provided a further example: If a family member uses the family computer to commit a crime, the other innocent family members could claim that they use that computer [and get it back]. REPRESENTATIVE SEATON asked Representative McGuire to explain how [the section of the bill currently under discussion] would work in regard to equipment confiscated from businesses. REPRESENTATIVE McGUIRE noted that the language of the bill reads, "remission to innocent non-negligent third parties". She said, "The notion would be that [in] that particular business, say, the computer manager didn't have a reason to know." Conversely, she said that if an office manager was negligent - if that person knew that a member of the staff had a pattern of using chat rooms on the Internet to lure children, for example - then she supposed that that [manager] would not be given back the confiscated equipment. She opined that a manager of a business should be certain of what his/her employees are "up to." Number 2699 REPRESENTATIVE McGUIRE, in response to questions by Chair Weyhrauch, said that the burden to get back the equipment would be upon the [non-negligent] third party and would be a separate proceeding "under State v. Rice." Number 2742 REPRESENTATIVE BERKOWITZ noted that, frequently, sexual offenses involve other equipment not mentioned in [HB 52], such as guns and knives. He expressed his concern that a narrowly tailored criminal statute breaks with the tradition that [Alaska] Statutes have of being fairly broad and leaving [room for] interpretation. He mentioned a Michigan Statute that seems to comply better with a more general approach to the criminal code. He said, "It leaves open, sort of, the irony of being able to take someone's computer, but not being able to take someone's knife." He asked Representative McGuire to comment on his remarks. REPRESENTATIVE McGUIRE remarked that in the interest of fiscal and legal certainty and of promoting a specific public policy "in the computer child pornography arena," she would like to "keep it narrow." REPRESENTATIVE BERKOWITZ commented that [HB 52] currently has a zero fiscal note. He stated his hope that [the legislature] would not fall into the bad habit of writing criminal code based on what the potential fiscal note would be, but rather would pursue it based on what's the best policy. He indicated that [Alaska's] criminal code is one of the best in the country, consisting of one volume, rather than many volumes like that of other states. He said he would be willing to take part in discussions to decide whether to stick with the general language, which he stated he thinks is more appropriate, or more specific [language], which he said [Representative McGuire] is advocating for [in HB 52]. Number 2869 REPRESENTATIVE McGUIRE indicated a precedent for [HB 52] - a law that was passed that allows for the forfeiture of a vehicle [regarding driving under the influence (DUI) cases]. She mentioned "instrumentality" and said there was previous discussion regarding "how far you go." She said, "The decision at that point in time was made to keep it narrow, for some of the reasons that I'm stating today." Representative McGuire noted that [the cost of] collection and storage of items by state troopers, for example, may potentially [result in a] fiscal impact. She concluded, "At the end of the day, what I would like to do is highlight this particular crime in this particular area of concern." Number 2960 CHAIR WEYHRAUCH indicated an e-mail [from the Naturist Action Committee (NAC), available in the committee packet]. Number 2991 REPRESENTATIVE GRUENBERG stated that he did not know if [Ben T.] Grenade, [Area Representative, Alaska, Naturist Action Committee and the author of the above-mentioned e-mail] would be testifying. He referred to Mr. Grenade's suggestion [on page 2 of the e-mail] to eliminate AS 11.41.460 from the definition of public crime. TAPE 03-06, SIDE B Number 2991 REPRESENTATIVE GRUENBERG said that the issue of civil forfeiture has "been around this legislature at least as long as I have been here." There are many equitable and constitutional issues involved, he noted. He said he is looking at [HB 52] as a forfeiture bill, not a pornography bill, because the issues are common to various forfeiture statutes. REPRESENTATIVE GRUENBERG said that a very unfortunate case arose, indicating the problems that can come from a badly written forfeiture statute. The name of the case is Bennis v. Michigan, a U.S. Supreme Court case. Representative Gruenberg described the case as follows: A man took the family car and went out and picked up a prostitute. The man was charged ... and the car was forfeited. The wife, who had a community interest in the car, sued to protect her interest. The case went all the way up to the U.S. Supreme Court, and the U.S. Supreme Court said there was no constitutional impediment to forfeiting her interest in this car too, though she was totally innocent. Number 2914 REPRESENTATIVE GRUENBERG stated that he can [foresee] a family computer being used by a family member to access "something that they shouldn't," and the whole computer being forfeited, which could have numerous educational implications for the rest of the family, for example. REPRESENTATIVE GRUENBERG called attention to the word "transmit" in subsection (b), page 2, lines 7-12, which read as follows: (b) In this section, "property" means computer equipment, telecommunications equipment, photography equipment, video or audio equipment, books, magazines, photographs, videotapes, audiotapes, and any equipment or device, regardless of format or technology employed, that can be used to store, create, modify, receive, transmit, or distribute digital or analog information, including images, motion pictures, and sounds. REPRESENTATIVE GRUENBERG, paraphrasing that subsection, commented that "any equipment ... used to transmit anything" could include an airplane carrying one can of film [used in a sexual offense]. He stated his concern regarding the word "transmit". He said, "[this is] swatting a fly with a cannon." He said that although he cannot solve these problems "off the cuff," they are a concern. Number 2830 REPRESENTATIVE McGUIRE noted that there is a long history in case law in the State of Alaska that clarifies that a person who is not party to an illegal act "has their day in court." CHAIR WEYHRAUCH acknowledged that Representative Gruenberg has a significant amount of expertise in the area being discussed. REPRESENTATIVE GRUENBERG stated that it is sometimes easier to find problems [in proposed legislation] than it is to find the proper solution. He stated his support of the bill. He mentioned that he thinks some of [the issues] have to be addressed to ensure that [unintended negative consequences don't occur]. Number 2780 THERESA WILLIAMS, President, Pissed Off Parents (POP), explained that POP was formed to foster legislation that actively protects children. She mentioned a 1988 [federal] Act protecting children from sexual predators, which allows for the same forfeiture [as HB 52]. Furthermore, it allows for the forfeiture of proceeds. She told the committee that there are 13 other states that have a specific law allowing for forfeiture in these types of crimes. MS. WILLIAMS indicated [a book she held entitled, "Child Pornography: The Criminal Justice System," published by the American Bar Association, March 2001], which reports that other states have generalized forfeiture statutes "that often apply." It was found in the court of appeals in Texas that computers "fall under" objects that are used to facilitate "these types of crimes," even though [information] can be erased [from them]. Ms. Williams mentioned a behavioral analysis and said that those who seek out children on the Internet are now defined as acquaintances, not strangers, because they get to know the children and the children believe they have a relationship. MS. WILLIAMS stated that, as parents, [the members of POP] would like help in seeing [these crimes] stopped, or "at least have penalties in keeping with the crime, instead of just a simple slap on the hand." She noted that there are currently 13 individuals in Alaska who are on the registry, who have committed pornography [offenses]. She stated that that is one of the many reasons she [testified]. MS. WILLIAMS, in response to a request from Chair Weyhrauch, clarified that she had, during her testimony, pointed to her son, Ivan Michael (ph). She indicated her other children in the room, as well. In response to a question from Representative Berkowitz, she replied that she would not have any objection to "broadening the forfeiture." Number 2643 MARK POESHEL, Police Officer, University of Alaska Fairbanks Police Department; Founder and Coordinator, Alaska Forces, testified that he was born in Alaska, is a parent of three children, and has a job that is "full-time patrol." He noted that Alaska Forces is a task force for which he handles all of the computer forensic "recoverage" for approximately the north half of the state. He added, "My agency represents all of the law enforcement agencies within the Interior, as well as the North Star Borough School District." MR. POESHEL explained that the task force was basically created [in response to] an offensive sexual murder of a two-year-old in the Fairbanks area. Agencies - including the Alaska State Troopers, the Fairbanks Police, the North Pole Police, the Military Police, and, unofficially, [certain] federal agencies - joined forces in combating computer crime and attempting to recover evidence when available. Currently, Mr. Poeshel noted, he is the only person involved full-time in the recovery of equipment, for example. Number 2541 MR. POESHEL told the committee that he had worked closely with [former] Representative Joe Hayes when his bill was drafted, and he thanked Representative McGuire for having the courage to bring this [issue] back. The message to victims through the passage of [HB 52] would be tremendous, he said. He opined that giving back [an offender] the [instrument] of a crime is an offense. He further stated that [adopting HB 52 would send a] message to the defendants that, "We're not going to tolerate this. Our children are off-limits. Our victims are off- limits." MR. POESHEL said he currently is attempting to figure out how he will "process the volume of computers" he has to give back in a case of child abuse where the offender pleaded only to drug charges, not sex charges. He described the act of removing evidence from some computers as an onerous one, completely time- consuming, especially for someone doing it in addition to another full-time job. Number 2449 MR. POESHEL stated that the message [that passing HB 52 would give] to the law enforcement community would be that it would get support in continuing to enforce the laws to protect the children, and to acquire better-suited equipment. He noted that the equipment he is currently using is 1.5 years old, at a minimum. Number 2436 MR. POESHEL addressed Representative Berkowitz's [previous question regarding broadening the forfeitures] by stating his assumption that "most of us would like to see the farm taken." In cases where there is a conviction on a sex offender, he said he would like that person to lose everything and, preferably, have it designated to support a victims' rights group, for example. He said that, realistically, that would be a time- and money-consuming prospect and that tailoring [the bill] to specifics is geared toward keeping it simple. MR. POESHEL, in regard to innocent people, told the House State Affairs Standing Committee that he currently has a case in which a daughter is charged with a particular crime, but the family did not realize that she used the computer. He said he is working hard to return the computer to that family, because it is not their crime. Number 2372 REPRESENTATIVE BERKOWITZ referred to Mr. Poeshel's previous comment regarding the offender who "pled down to drug charges," and stated that that is one of the reasons why the Michigan Statute that he mentioned in previous discussion has been "a little bit more successful." He explained, "They've been able to use the instrumentality of a crime language in order to retain the ability to forfeit, even if a case pleads to something somewhat different." He stated his understanding of Mr. Poeshel's concerns regarding simplicity, and he said he is looking forward to working with Representative McGuire to broaden [the language], yet maintain its simplicity. Number 2325 JANET BROWN, Co-founder, Pissed Off Parents (POP), told the Committee that she lives in Juneau, Alaska, and is a mother whose life has been affected by a sexual predator. She continued to voice her written testimony [included in the committee packet], which read as follows: My daughter was raped by her father - my husband. During the investigation there was a variety of electronic evidence: Video tapes of children while they slept, showing their private areas; video tapes of an unconscious victim being sexually assaulted and raped; a voyeur-type video taken in my home of a family member taking a shower; audio cassettes of a sexual assault; pictures of unknown females - no faces, just body parts; one scanned picture with enlarged body parts, reprinted over 160 times. This evidence was documented back 20 years. The computer and video camera, along with a 35- millimeter camera played a big part in fulfilling this predator's fantasies. To return these items to him upon his release from jail would surely be a catastrophe. Being in denial that he has a problem, and with access to these items, will definitely guarantee a new victim. To return any of these confiscated items needs to be denied. MS. BROWN asked the committee, for the sake of her daughter and any future victims, to support HB 52; to give sexual predators one less avenue of access to children. She said, "Put the rights of our children first, in deed, as well as thought, making their lives safer and more secure." Number 2195 REPRESENTATIVE GRUENBERG told Ms. Brown that he appreciates what it took for her to tell the committee what she did. He asked what would prevent [an offender] from buying more equipment. MS. JONES replied, "Nothing." REPRESENTATIVE GRUENBERG asked if there was anything in the law that would allow a judge to [tell that offender] that he/she could not own a certain type of equipment. He suggested that a judge should have that power in sentencing. Number 2147 CHAIR WEYHRAUCH told Ms. Brown that "we all" share her concern and want to do everything possible to stop this kind of thing from ever happening to anybody else. MS. JONES said, "Theresa gives the statistics. I give the emotion." CHAIR WEYHRAUCH told Ms. Brown that "it rings through," and he thanked her for who she is and what it took [to share her testimony]. Number 2097 MATTHEW LEVEQUE, Lieutenant, Alaska State Troopers, testified on behalf of the troopers in support of [HB 52]. He told the committee that he is available for questions. REPRESENTATIVE BERKOWITZ asked Mr. Leveque if he objected to broadening the forfeiture provisions to instrumentalities of the crime. LIEUTENANT LEVEQUE responded that he is not an attorney and does not know what the implications of broadening it would be. He said that the only concerns that [the Alaska State Troopers] would have would be in regard to storage. Number 2056 REPRESENTATIVE SEATON asked if the "proceeds of the crime" is - or could be - covered in [the language of the bill]. LIEUTENANT LEVEQUE said he does not believe that proceeds are specifically covered in [HB 52]. In response to a follow-up question from Representative Seaton, he stated that he does not know if proceeds are currently forwarded, but he does not believe that that's the case. Number 2011 REPRESENTATIVE GRUENBERG asked if it is known whether there is a general statute that allows the judge to order forfeiture of proceeds of any crime. He mentioned, for example, a criminal enterprise off of which money is made. He clarified that this isn't restitution. CHAIR WEYHRAUCH mentioned the RICO [Racketeer Influenced and Corrupt Organizations] statute and said he is not sure if it would apply, or not. Number 1951 KRIS MILLER, Lieutenant, Anchorage Police Department, testified on behalf of the department in support of [HB 52]. She noted that Detective [Richard] Rhea from the Anchorage Police Department's computer crimes unit is available to answer questions. Number 1919 REPRESENTATIVE HOLM moved to report HB 52 out of committee with individual recommendations and the accompanying zero fiscal note. There being no objection, HB 52 was reported from the House State Affairs Standing Committee.
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