Legislature(2001 - 2002)
04/20/2001 01:46 PM Senate JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 32-SEX CRIME AND PORNOGRAPHY FORFEITURES
REPRESENTATIVE JOE HAYES, sponsor of HB 32, said if a person was
convicted of a sex crime for distributing child pornography through
the Internet or if they were convicted for knowingly enticing
minors thorough Internet chat rooms their computers and equipment
would be seized and used by law enforcement. Representative Hayes
said he had letters of support from law enforcement organizations
and he had also received one letter of opposition from a naturalist
group in Wisconsin and their concerns had been addressed. At one
point HB 32 was too broad and there was a concern that real
property could be taken, but the definition had been refined making
the wording more specific to computers and computer related items.
SENATOR COWDERY asked if cell phones and hand held radios could be
taken.
REPRESENTATIVE HAYES said the definition of property was on page 2,
lines 5 through 10, and cell phones and hand held radios were not
listed.
SENATOR ELLIS asked for a definition of child pornography. He said
people send pictures of their children to relatives through the
Internet, and sometimes the children are "naked on a bear skin rug,
and it's just a baby." He wondered if there was a clear definition
and a way to discriminate between naked baby pictures and what
would be considered child pornography.
REPRESENTATIVE HAYES said the definition was referred to in the
bill through statutes AS 11.61.123 - 11.61.127.
SENATOR ELLIS said that police now seize computer equipment from
crime scenes and he asked if HB 32 allowed law enforcement to
retain the seized equipment or was it to be auctioned for law
enforcement resources.
REPRESENTATIVE HAYES noted that law enforcement does not have
adequate resources for the latest computer technology and HB 32
would allow for the seizure of property and, after a conviction,
use the property. The equipment would not be sold.
SENATOR THERRIAULT asked if law enforcement could sell the
equipment.
REPRESENTATIVE HAYES said there was nothing from prohibiting law
enforcement from selling the equipment but the intent of the
legislation was to allow law enforcement to use it.
SENATOR THERRIAULT said that there was sometimes criticism of law
enforcement for seizures so, "they can get their hands on assets or
cash." He asked if the property was sold, would law enforcement
automatically have access to the cash or would the cash accrue to
the state treasury where it would sit until the legislature
appropriated the money back.
REPRESENTATIVE HAYS explained that selling the equipment had never
been discussed, the intent of HB 32 was to give law enforcement the
use of newer, more modern equipment. The seized computers would
have the perpetrators web addresses and connections, which could be
used for the apprehension of other criminals.
SENATOR THERRIALUT said the intent section of HB 32 asks the courts
for protection of innocent third parties who may have an ownership
interest in the equipment so that their equipment would not be
seized.
Number 570
REPRESENTATIVE HAYES said that was correct. The intent wording was
added to give reassurance that an innocent third party would not
have his or her computer taken.
SENATOR THERRIAULT asked if a sexual offender with a prior
conviction was staying in someone's home and using their computer,
would the homeowner need to lock up his or her computer equipment
to keep it from being seized.
REPRESENTATIVE HAYES said the intent language stated that third
person property could not be seized, so even if a sexual offender
were to use a homeowner's computer that computer could not be
seized.
SENATOR THERRIAULT asked if the "firewall" protection was
specifically directed to child pornography.
REPRESENTATIVE HAYES said he was not sure of the answer.
SENATOR COWDERY asked where the money goes after the sale of seized
property.
CHAIRMAN TAYLOR said there were people on teleconference who could
probably answer that question but there were other questions to be
addressed at that point.
SENATOR THERRIAULT said he also had a concern with the definition
of child pornography and wondered if the statute had a good
definition.
SENATOR ELLIS responded there was a good definition in the statute.
Number 808
SENATOR ELLIS said people receive a lot of unsolicited information
through email. He asked if someone viewed unsolicited child
pornography and then deleted it, would they have to download the
offensive material or would just looking at it cause a person to be
caught up in a criminal investigation.
REPRESENTATIVE HAYES said a person would not be convicted of a
crime for looking at an unsolicited pornographic email.
SENATOR ELLIS said the intent appears aimed at the person producing
the material and distributing it through the Internet, presumably
for money.
REPRESENTATIVE HAYES said money does not have to be involved for
this to be a crime.
SARGEANT CHUCK KOPP, Alaska Peace Officers Association (APOA),
speaking via teleconference from Kenai, thanked Representative
Hayes for introducing HB 32. He said the intent for the seized
equipment was for law enforcement use. When seized equipment is
sold the money goes into a municipal general fund and it is not
immediately appropriated back to the department but this rarely
occurs because seized equipment is usually put to immediate use for
law enforcement purposes. He said evidence had to be downloaded to
the hard drive and stored before the state could collect it. This
was to protect people who receive unsolicited email or people who
might want to view pornography. Viewing is different from
possessing something on a hard drive. Sergeant Kopp said APOA
supported HB 32.
CHAIRMAN TAYLOR noted for the record that:
The purpose of this law, as I discern it, is to remove
this equipment from its criminal use. That it is sold or
destroyed or utilized by enforcement is really
irrelevant. And I would hope that this record is not
becoming one of 'the department needs these tools so
therefore we'll pass a law to confiscate and forfeit
equipment.' That's really kind of a bad public policy to
be discussing, I think, sets the wrong tone. I'm
reviewing this legislation because I believe this
equipment needs to be removed from the criminal element.
If sold, the general fund or the department or if it's a
municipality might have some additional resources. We
confiscate, utilize, and even sell aircraft, boats, and
automobiles. They don't always end up being utilized
merely by the department and I don't want to give anybody
in the listening audience or anybody considering this
legislation, the thought that it is being passed solely
for the purpose of going out and confiscating a few hot
computers so we can take - that we wouldn't provide for
the department through their budget. In fact, I happen
to know an area of the department's budget where they
could have a million dollars today if they'd just tell
one prima donna to quit flying around on an airplane.
Nobody seems to want to do that but needless to say it
would buy an awful lot of good computers.
Number 1265
LIEUTENANT DUNNIGAN, Department of Public Safety (DPS), testifying
via teleconference, said the department supported HB 32. He said
that if the court determined the equipment should be forfeited it
would be turned over to the Department of Administration and sold.
The money would then go into the general fund unless the court
specifically assigned it for a law enforcement need or purpose.
MR. MARC POESCHEL, Coordinator for the Interior Alaska Forces Task
Force, testifying via teleconference, said the task force has all
the agencies in the Fairbanks area working together to combat
computer crime. HB 32 would remove equipment from offenders,
forcing them to buy new equipment if their intent was to offend
again. He said HB 32 sends the message that Alaska will not put up
with that type of crime. He said the task force supports HB 32.
Number 1481
CHAIRMAN TAYLOR said the sentence structure on page 1, line 9 may
be incorrect and could be clearer. The sentence reads:
INTENT. The legislature recognizes these forfeitures as
in personam and, as a matter of consistency and fairness,
instructs the courts to continue to provide, as they
consider reasonable, remission to innocent parties who
have an ownership interest in the equipment forfeited.
CHAIRMAN TAYLOR said in personam refers to title, ownership, and
use, whereas, in rem refers to the forfeiture of an object.
REPRESENTATIVE HAYES said that language was presented the day HB 32
was heard on the House Floor and the body approved it. He said he
was amenable to any clarification of the language.
CHAIRMAN TAYLOR said he would like legal services to redraft the
bill for a clearer definition.
SENATOR ELLIS asked how soon the chairman expected the changes.
CHAIRMAN TAYLOR responded he expected the changes by Monday.
SENATOR THERRIAULT asked if HB 32 was to be held for final action
or should there be a conceptual amendment.
CHAIRMAN TAYLOR said he would like to see the new bill before
moving it out of committee.
SENATOR THERRIAULT said his preference would be to have the new
language in "plain English."
CHAIRMAN TAYLOR announced HB 32 would be held until Monday.
| Document Name | Date/Time | Subjects |
|---|