Legislature(2009 - 2010)HOUSE FINANCE 519
03/19/2010 01:30 PM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| HJR48 | |
| HB298 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 298 | TELECONFERENCED | |
| *+ | HJR 48 | TELECONFERENCED | |
| + | TELECONFERENCED |
HOUSE FINANCE COMMITTEE
March 19, 2010
1:37 p.m.
1:37:39 PM
CALL TO ORDER
Co-Chair Stoltze called the House Finance Committee meeting
to order at 1:37 p.m.
MEMBERS PRESENT
Representative Mike Hawker, Co-Chair
Representative Bill Stoltze, Co-Chair
Representative Allan Austerman
Representative Mike Doogan
Representative Anna Fairclough
Representative Neal Foster
Representative Les Gara
Representative Reggie Joule
Representative Mike Kelly
MEMBERS ABSENT
Representative Bill Thomas Jr., Vice-Chair
Representative Woodie Salmon
ALSO PRESENT
Hanna McCarty, Staff, Representative Beth Kertulla,
Sponsor; Samantha Englishoe, First Alaskans Institute
Fellow, Office of Representative Beth Kertulla, Sponsor;
Joseph Masters, Commissioner, Department of Public Safety;
Anne Carpeneti, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law; Derek
DeGraaf, Sergeant, Supervisor, Technical Crimes Unit,
Alaska Bureau of Investigation, Division of Alaska State
Troopers.
PRESENT VIA TELECONFERENCE
Gerad Godfrey, Chair, Violent Crimes Compensation Board;
Jeffrey Mittman, Executive Director, Alaska Civil Liberties
Union (ACLU) of Alaska; David Kazarian, Big Lake, Alaska;
David Horowitz, Executive Director, Media Coalition, New
York City.
SUMMARY
HB 298 SEX OFFENSES; OFFENDER REGIS.; SENTENCING
HJR 48 was REPORTED out of Committee with a "do
pass" recommendation and with attached new fiscal
note by the Legislative Affairs Agency.
HJR 48 CRIME VICTIMS FUND PRESERVATION ACT
HJR 48 was HEARD and HELD in Committee for
further consideration.
HOUSE JOINT RESOLUTION NO. 48
Urging the United States Congress to pass the Crime
Victims Fund Preservation Act.
1:37:56 PM
HANNA MCCARTY, STAFF, REPRESENTATIVE BETH KERTULLA,
SPONSOR, explained that for more than twenty years, the
Victims of Crime Act (VOCA) fund has provided grants to
state victim assistance programs to fund services to more
than four million victims of all types of crimes. She
relayed that no one chooses to be a victim of crime, but
when a crime does occur, victims deserve to be treated with
dignity and respect. For victims, fairness includes
restoring health, safety, and well-being. Without the VOCA
funding and the direct services it supports, crime victims
go without advocacy, medical and mental health, and legal
services.
Ms. McCarty asked for support in efforts to raise the cap
on the fund in order to ensure that VOCA assistance grants
continue to support vital services.
SAMANTHA ENGLISHOE, FIRST ALASKANS INSTITUTE FELLOW, OFFICE
OF REPRESENTATIVE BETH KERTULLA, SPONSOR, informed the
committee that the Victims of Crime Act of 1984 created the
VOCA fund as a protected and dedicated source of funding
for crime victims' programs. The fund is not financed by
taxpayer revenue but by a collection of fines, forfeitures,
and other penalties paid by federal criminal offenders.
Each year VOCA dollars are distributed to states to support
two important types of programs: crime victim compensation
programs, which reimburse victims for crime-related
expenses; and victim assistant programs, which provide
victims with direct support and guidance in the aftermath
of crime. The fund is comprised of offender penalties and
fines, and the amount of deposits into the fund fluctuates
from year to year. In 2000, Congress started capping annual
obligations from the fund, saving the amount collected over
the cap to ensure the fund's stability.
Ms. Englishoe continued that the VOCA fund has a current
accumulated balance of nearly $3 billion. Under the VOCA
statutory formula for the annual distribution of funds,
state assistant grants are dependant on the size of the cap
and the amount available for those grants is whatever
remains after other programs have been funded. Unless the
cap is high enough, state VOCA assistance grants are cut as
other VOCA-dependent costs increase and new under-the-cap
programs and earmarks are added. Despite unprecedented
deposits into the fund, inadequate caps led to severe
cutbacks in VOCA's victim assistance grants from 2006 to
2008, causing a devastating impact on programs providing
direct services to crime victims. However, at the same time
as the state victim assistant grants were cut by $87
million (22 percent), the fund grew more than $700 million.
The balance would have been available for direct services
if the cap minimum had been higher.
1:42:14 PM
Ms. Englishoe maintained that under the Crime Victims Fund
Preservation Act, the VOCA statute would establish minimum
funding levels for fiscal years 2010 through 2014, steadily
drawing down a portion of the accumulated balance. The
Office of Management and Budget has projected that the fund
will have a balance of at least $1.3 billion at the end of
2014 even with the minimum caps. The fund would be
sustainable and would not need other revenue sources.
Ms. Englishoe cited strong state support for the Crime
Victims Fund Preservation Act, including by the Department
of Health and Social Services, the Department of Public
Safety, Alaska Attorney General Dan Sullivan, and U.S.
Congressman Don Young. In addition, representatives from
the state Violent Crimes Compensation Board and the Council
on Domestic Violence and Sexual Assault were supportive.
Representative Gara voiced support for the measure.
Co-Chair Stoltze noted the absence of testimony from
Victims for Justice.
GERAD GODFREY, CHAIR, VIOLENT CRIMES COMPENSATION BOARD
(via teleconference), spoke in support of the legislation.
He referred to a letter of support for the resolution from
the board (copy on file). He underlined the value of
providing assistance in the recovery and rehabilitation
process to innocent victims of violent crime. He noted the
cost benefit to society, as counseling and intervention
often serves as prevention in the next generation.
Assistance often empowers victims to remain or become
productive members of society.
1:47:07 PM
Co-Chair Stoltze acknowledged the work of the board. He
referred to the zero fiscal impact note.
Co-Chair Hawker MOVED to report HJR 48 out of Committee
with individual recommendations and the accompanying fiscal
note. There being NO OBJECTION, it was so ordered.
HJR 48 was REPORTED out of Committee with a "do pass"
recommendation and with attached new fiscal note by the
Legislative Affairs Agency.
HOUSE BILL NO. 298
"An Act relating to the crimes of harassment,
possession of child pornography, and distribution of
indecent material to a minor; relating to suspending
imposition of sentence and conditions of probation or
parole for certain sex offenses; relating to
aggravating factors in sentencing; relating to
registration as a sex offender or child kidnapper;
amending Rule 16, Alaska Rules of Criminal Procedure;
and providing for an effective date."
1:49:04 PM
JOSEPH MASTERS, COMMISSIONER, DEPARTMENT OF PUBLIC SAFETY,
noted that other components of the initiative had been
previously presented to the committee, primarily during the
operating budget hearings. Other components involve
statutory changes that provide law enforcement personnel
and prosecutors with more effective tools for dealing with
sex-related offenses perpetrated in the state.
Co-Chair Stoltze pointed out that there had been comments
made to his office about computer privacy issues.
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES
SECTION-JUNEAU, CRIMINAL DIVISION, DEPARTMENT OF LAW,
echoed that the theme of the bill was "fine tuning" already
existing law, except for sections that expand the law to
propose new prohibitions.
1:52:02 PM
Ms. Carpeneti provided a sectional overview of the bill
(copy on file).
· Sections 1 and 2 correct an error made in 2007 when
the legislature enacted AS 11.56.759, that adopted a
class A misdemeanor if a sex offender violates
specific conditions of probation or parole. One of the
requirements of the crime is that the person has
served the entire period of incarceration imposed for
the crime. This is effective for probationers, but not
for parolees, because a person is never on parole if
he or she has served the entire period of
incarceration. A member of the Parole Board brought
this issue to our attention, because the statute has
caused problems for the board in dealing with
parolees. These sections remove parolees from the
statute.
Ms. Carpeneti detailed that the first two sections are
housekeeping provisions.
· Section 3 rewrites AS 11.56.840, failure to register
as a sex offender in the second degree. The proposal
is similar to current law, but it sets out the
elements more clearly. The section also adopts an
affirmative defense that unforeseeable circumstances
outside the control of the person prevented him or her
from registering, and that the person contacted the
Department of Public Safety immediately upon being
able to do so.
Ms. Carpeneti noted that the section clarifies the language
to make it easier to read. In addition, it responds to a
state court decision (Moffett v. State) in connection with
a similar law (failure to appear). The decision was that
the state must prove that the defendant made a deliberate
and conscious decision not to appear; as pertains to HB
298, the decision would extrapolate to a person making a
deliberate and conscious decision not to register as a sex
offender. The bill would adopt an affirmative defense for
those people who are unable to register because of
circumstances beyond their control, which does not happen
often; registration could happen by phone.
1:54:07 PM
Representative Joule queried language barriers, asking how
the state would make sure that people with another language
besides English as their first language would understand
the concept. Ms. Carpeneti replied that the person must
register for the first time in person, either when released
from jail or in person at the Department of Public Safety
(DPS). She presumed that responsibilities are explained at
that time. She did not know about adjustments made for
language; she agreed the issue was important.
Representative Joule stated concerns because people might
nod to acknowledge being spoken to without fully
understanding or agreeing with what is being said. Ms.
Carpeneti responded that the bill would not change
obligations related to registering, unless there has been
an emergency.
Ms. Carpeneti agreed to check with DPS about the use of
other languages. She moved to the next section:
· Section 4 would raise a form of harassment in the
second degree (that is, with intent to harass or annoy
another person, the person subjects the other person
to offensive physical contact) to harassment in first
degree if the offensive physical contact is by the
offender touching the other person's genitals, anus,
or female breast. Harassment in the first degree is a
class A misdemeanor; the second degree offense is a
class B misdemeanor. There have been prosecutions
recently involving offensive touching that occurred so
quickly that the court concluded that the victim did
not have time to convey lack of consent to the
offender. The court reduced these charges from sexual
assault to harassment in the second degree. This
conduct is more serious than a class B misdemeanor;
the bill would raise it to a class A misdemeanor.
Ms. Carpeneti detailed that the situation related to
harassment had just come up recently; people have been
victimizing other people without time for the victim to
communicate lack of consent. The bill would increase the
contact to a level of offense that is more in tune with the
conduct.
Co-Chair Stoltze asked the reasoning behind the language
used on line 14. Ms. Carpeneti responded that the language
was current law; she did not know, but assumed that the law
did not want to miss any of the substances.
1:57:56 PM
Ms. Carpeneti continued:
· Sections 5, 6, and 7 address a problem with Alaska law
prohibiting possession of child pornography that was
raised by a recent decision of the Alaska Court of
Appeals, Worden v. State, 213 P.3d 144 (Alaska App.
2009). Worden held that our current statute does not
prohibit a person from viewing child pornography on a
computer; rather, the statute requires that the person
must also save it on the computer to be considered to
possess it. In response to this decision, the bill
adopts the federal approach. It prohibits possession
of child pornography, and it also prohibits a person
from knowingly accessing child pornography on a
computer with the intent to view it.
The bill adds to the child pornography law the
prohibition of the depiction of part of a child under
18 years of age that by manipulation appears to be
engaged in conduct prohibited by ASD 11.41.455(a). It
also would prohibit material that appears to include a
child under 18 years of age (often referred to as
anime pornography) if the material is obscene.
Ms. Carpeneti detailed that Section 5 makes changes related
to the crime of distributing child pornography, mainly
conforming to what the bill does in subsequent sections.
The change was made in the House Judiciary Committee; the
drafter suggested the language because it was more similar
to federal law than existing state statute.
· Section 8 proposes an affirmative defense to
possession of child pornography that is similar to
federal law. The affirmative defense would address a
situation where a person finds child pornography on
their computer, and did not obtain it themselves. The
defense requires that there are three or less
depictions, and the person, without showing the
material to another person except law enforcement,
destroys the depiction or contacts law enforcement and
turns it over to them.
Section 8 also adopts a definition of the "appears to
include a child" for purposes of the prohibition of
anime child pornography that references a definition
of obscene.
Ms. Carpeneti explained that Sections 6 through 8 amend the
crime of possession of child pornography. One is a response
to a decision (Wharton v. State) defining possession of
child pornography as not including viewing child
pornography on a computer; the position of the Department
of Law (DOL) is that it just as harmful to the victim if
the material is viewed on a computer. The bill (page 4,
line 3) would amend the statute to prohibit knowingly
accessing prohibited material on a computer with intent to
view.
Ms. Carpeneti noted that other additions made in the House
Judiciary Committee are found lines 7, 8, and 9 and
prohibit persons from possessing material depicting a part
of a human child that has been manipulated to look like
prohibited acts under state law. There is some element of a
real child's body depicted.
Co-Chair Stoltze asked whether the issue addressed was
animation. Ms. Carpeneti replied that the section was
different; animation is addressed on lines 10 and 11.
"Anime porn" or "cartoon pornography" does not use a human
child in creating the images. In order for the prohibition
to be constitutional, it has to be obscene. The material
(added in House Judiciary) appears on line 30 (page 4) to
line 7 (page 5) and is taken from language from the U.S.
Supreme Court decision that anime or cartoon porn can be
prohibited in certain circumstances.
2:00:57 PM
Representative Gara commented that a criminal provision can
never be drafted perfectly; it can be under-drafted
(allowing someone to get away with something) or over-
drafted (implicating innocent people). He stated concerns
with language that cannot be written clear enough. He
pointed to page 4, line 7, which bans depiction of parts of
children. The purpose (on both the state and federal
levels) of banning the actual photographs was that people
were making money and furthering the trade. He asked her
interpretation of "depiction." Ms. Carpeneti responded that
she read the word as a photograph of some part of a human
child.
Representative Gara was glad, as he did not want a debate
about what drawings would be banned. He pointed out that a
depiction by manipulation, creation, or modification could
also be interpreted to be a drawing, a crayon drawing, or a
drawing created on a computer that is not a photograph. Ms.
Carpeneti responded that the department would be happy to
define it as limited to depictions or photographs that seem
reasonable. She wanted the language to be clear.
Representative Gara opined that the language had to be
fixed. He thought drawings should also be prohibited. He
asked which depictions would be made criminal by the bill.
2:04:54 PM
Ms. Carpeneti replied that the depictions that would be
made criminal were those of conduct proscribed in AS
11.41.455(a):
A child under 18 engaged in the following conduct:
sexual penetration; the lewd touching of another
person's genitals, anus, or breast; the lewd touching
by another person of a child's genitals, anus, or
breast; masturbation, bestiality, or the lewd
exhibition of a child's genitals; or sexual masochism
or sadism.
Representative Gara requested a tighter definition of
"depiction" so that it was clear that the subject was a
photograph or digital photograph.
Representative Gara directed attention to page 4, line 3.
He maintained that the point of the existing law was that
letting people download photographs onto computers
encourages the original commercial aspect of the person who
created the photograph; society has accepted this as a
crime. He questioned what would be changed by the bill. A
person could briefly acquire the image on the computer and
very quickly reject it, not download, keep, sell, or
distribute it. In the scenario, a person would knowingly
access the image with intent to view it, but then convince
themselves that the action is inappropriate. He was
concerned that a young person making the wrong choice and
then the right choice would be made a criminal.
Ms. Carpeneti replied that the issue was a question of
degree. She did not think it would make a difference to a
victim whether the image was downloaded or simply viewed.
She asserted that each time the material is viewed, the
child is re-victimized. She pointed out that the
legislation would require that the person knowingly
accessed the material with intent to view. The bill also
has an affirmative defense included for accessing less than
three images and then deleting them or calling law
enforcement. The department wanted people who know what
they are accessing and look at the material without
downloading it to be criminally responsible, as the child
is victimized by the viewing.
2:08:44 PM
Representative Joule wondered whether there was an
exemption for state personnel who have to view the material
to verify content. Ms. Carpeneti replied that police
officers investigating the material are not subject to
criminal prosecution.
Representative Doogan asked whether accidentally viewing an
image could result in prosecution under the proposed
provision. Ms. Carpeneti responded that it was possible but
highly unlikely.
Representative Doogan did not want to change the law to
allow prosecution for accidental viewing. He queried the
proposed language. Ms. Carpeneti responded that the bill
would make it a crime to knowingly access the images
described with intent to view them, knowing the images are
prohibited under law. She acknowledged that it could be
just one viewing.
Representative Doogan described a possible scenario in
which a person "stumbles across something." He asked
whether the person could be prosecuted. Ms. Carpeneti
responded that the bill would not prohibit a person who
stumbles across an image. She stated that the bill would
only prohibit people who knowingly go to the image. An
image that "pops up" does not qualify as knowingly
accessed. The bill requires the decision to go to the image
to look at it, knowing that it is prohibited.
2:12:42 PM
Representative Doogan asked how a law enforcement officer
would judge whether the image was knowingly or accidently
accessed. He wanted a legal opinion. Ms. Carpeneti replied
that as a prosecutor in such a case, she would look at all
evidence presented by law enforcement; if one image was
accessed, she would not prosecute, because she could not
prove it. She stressed that there has to be enough evidence
to convince a jury of twelve people beyond a reasonable
doubt that the person knowingly accessed the material with
intent to view prohibited images.
Representative Gara echoed concerns regarding prosecutors
who would misuse the provision. He described experience
with criminal practice. He stated concerns with the
language "knowingly accesses on a computer." He was
comfortable with current law about downloading, which he
viewed as a very intentional action. He described a
scenario in which a person opens an image that they did not
know was child pornography. Ms. Carpeneti responded that
there would have to be proof that the individual person had
the specific intent of accessing the material, which is not
an easy thing to prove. She hoped prosecutors would not
blur the line. The prosecutor has to show beyond a
reasonable doubt that the person intended to access the
material that they knew was prohibited by law.
2:16:53 PM
Representative Gara described a situation in which a 19-
year-old person is sent an image that he opens and keeps
before realizing what he has done. He asked whether the
person would have committed a crime. Ms. Carpeneti did not
think the situation qualified as a crime under the
legislation. She stated that clicking on an image that has
been sent is not knowingly accessing the image with intent
to view prohibited material.
Representative Gara argued that a jury could look at the
situation and determine that the person should have known.
Ms. Carpeneti did not think the measure would allow for
that to happen.
Co-Chair Stoltze asked whether people had been prosecuted
for possessing a single image. Ms. Carpeneti responded not
that she was aware of.
Co-Chair Stoltze thought the issue pertained to situations
with thousands of images. Ms. Carpeneti agreed that the
cases prosecuted tend to involve hundreds of images.
Representative Fairclough asked the definition of
"knowingly." She pointed to the victim's rights. She
described "stores" or sites for electronic child
pornography. She felt the only thing left for law
enforcement was a link to the sites. She wanted a way to
clearly and specifically describe situations beyond
downloading.
2:22:05 PM
Ms. Carpeneti provided the definition of "knowingly" found
in AS 11.81.900(a)(2), which applies both in terms of
conduct and circumstances:
A person acts knowingly with respect to conduct or to
a circumstance as described by a provision of law
defining an offense when the person is aware that the
conduct is of that nature or that the circumstance
exists. When knowledge of the existence of a
particular fact is an element of an offense, that
knowledge is established if a person is aware of a
substantial probability of its existence, unless the
person actually believes it does not exist. A person
who is unaware of conduct or a circumstance of which a
person would have been aware of had that person not
been intoxicated acts knowingly with respect to the
conduct or circumstance.
Representative Gara described a scenario in which a 19-
year-old person opens up an image that he recognizes as
against the law; he goes to a second and third image, and
then stops. He wondered whether the scenario could be a
crime since the action was intentional. Ms. Carpeneti
responded that the example was pretty theoretical because
the state does not prosecute single instances. She opined
that it should be against the law for a person to knowingly
access photographs with intent to look at pictures that
described children engaged in the described acts.
2:25:10 PM
Representative Gara queried more detail about anime
pornography. Ms. Carpeneti responded that the issue was
addressed on page 4, lines 10 to 11. The portion was added
in the House Judiciary Committee and would prohibit a
person accessing or possessing cartoon material depicting
children less than 18 years of age. The definition of
"appears to include a child" begins on line 30 (page 4) and
brings in a definition of obscenity.
Ms. Carpeneti provided background, detailing that the U.S.
Supreme Court (Ashcroft) held that anime or cartoon
pornography could not be prohibited because it does not
involve the use of real people. A later decision amended
that to the extent that cartoon pornography can be
prohibited if it is obscene. Page 5, lines 3 through 7
contains the Supreme Court language defining obscenity that
would comply to make anime or cartoon pornography illegal.
She noted that anime pornography is considered by some to
be a gateway act to victimizing real children.
Representative Gara asked whether there was law currently
making [pornographic] cartoons illegal. Ms. Carpeneti
replied that there was not. She said the provision would be
a new policy call.
Co-Chair Hawker asked how many states had outlawed anime
pornography in the manner proposed in HB 298. Ms. Carpeneti
did not know and offered to get more information.
Co-Chair Stoltze queried the history of debate connected
with the issue. Ms. Carpeneti replied that she was not
present when the item was discussed in the House Judiciary
Committee. She offered to find out.
2:29:10 PM
Representative Kelly asked for more information regarding
how Alaska compares with similar laws in other states. He
wondered whether Alaska was breaking new ground.
Representative Fairclough felt Alaska was on the "bleeding
edge" statistically, and she wanted to be on the cutting
edge of laws holding people accountable. She reported that
she had done some research on anime child pornography and
found out that it was defined as violent or sexually
explicit animated cartoons.
Ms. Carpeneti directed attention to the next sections:
· Sections 9, 10, 11, and 12 amend the crime that
prohibits the electronic distribution of indecent
material to minors by expanding the offense to
prohibit any form of distribution of indecent
materials to minors, in addition to electronic
distribution. It also adds a new element of the
offense that that the state must prove that requires
the material to be harmful to a child. Whether the
material is harmful to a child is defined in Section
12, that defines that term.
Ms. Carpeneti added that the amendment was added by the
House Judiciary Committee and that the Office of Special
Prosecutions and Appeals agreed that it is necessary to
comport with both federal and state constitutional
provisions. The term "harmful to minors" is later defined
on page 6, lines 9 through 18, which list three
requirements. The material must: appeal to the prurient
interest in sex with persons under 16 years of age; lack
serious literary, educational, or artistic values; and be
patently offensive to prevailing standards in the adult
community as a whole with respect to what is reasonable for
children under the age of 16. She noted there had been
concern about prohibiting sex education materials; the
department believed the additional element would comport
with constitutional provisions.
2:32:56 PM
Representative Doogan pointed to Section 12 (the harmful to
minors definition) and asked who would distinguish whether
the elements are present. Ms. Carpeneti responded that the
question was for the jury or the judge.
Representative Doogan asked how the elements are
established when someone is charged with the offense. Ms.
Carpeneti replied that the police investigating the
materials make a determination; if the police believe the
materials will violate the law, they would give the
evidence to DOL and the department would determine whether
to bring charges.
Representative Doogan asked who would be the "reasonable
person" determining whether to charge a person. Ms.
Carpeneti responded that like any other crime prosecuted by
the state the police would investigate, gather evidence,
and bring it to DOL. The department would evaluate whether
the case could be proven beyond a reasonable doubt. She
asserted that a "reasonable persons" standard is used all
the time in the law.
Representative Doogan described a possible scenario: A
police officer goes to investigate a shooting, gathers the
evidence, takes it to a prosecutor who makes a decision to
prosecute, and it goes to a jury. He described the decision
as a "fact decision." He did not believe the issue before
the committee concerned fact questions.
2:36:32 PM
Representative Doogan questioned the standards by which
decisions are made related to subjects such as literary
harm. Ms. Carpeneti responded that most investigations and
prosecutions do not only involve one person shooting
another and facts that can be described by an outside
viewer. She emphasized that most crimes in Alaska involve
things like "culpable mental state." Prosecutors and
investigators must look at all the facts available and
determine what happened, what the person was thinking, and
what their intent was. Often the standard of a reasonable
person in criminal law is that someone believes they needed
to exercise self defense. The belief has to be reasonable,
and meet the test whether any reasonable person in the same
situation would act the same way. The reasonable person
standard is not foreign to the state in prosecuting crimes.
Ms. Carpeneti added that Alaska law does not include
concepts like serious literary, educational, or political
value. The concepts are new to Alaska, but not to other
states and federal prosecution of obscenity cases. She
listed U.S. Supreme Court decisions that affected the
standards.
2:40:10 PM
Representative Doogan thought the bill had more than one
new legal standard. He wanted to understand which were new.
Ms. Carpeneti answered that the one being discussed was new
because it requires that the material be harmful to minors,
and the concept is defined using terms taken from decisions
by the U.S. Supreme Court that are new to Alaska.
Representative Fairclough wanted to frame the issue
differently; she thought the particular portion of the code
was about distribution to a minor. It also adds a new
section (d) related to showing something to a child to
arouse them; law enforcement would make a determination
whether there was intent to arouse using the photographs.
Ms. Carpeneti agreed with her description and underlined
that the new element will make it harder to prosecute
because proof has to be beyond a reasonable doubt that it
is harmful by the definition.
Co-Chair Stoltze stated concerns.
Representative Doogan clarified that he did not want to
make prosecution either easier or harder; he wanted to
understand how to change the law in such a difficult
situation.
2:43:16 PM
Ms. Carpeneti moved on to the next section:
· Section 13 adds the crimes of human trafficking in the
first and second degrees, distribution of child
pornography, possession of child pornography, and
distribution of indecent materials to minors to the
crimes that are not eligible for a suspended
imposition of sentence.
Section 13 also includes an amendment that removes
"substantially" when describing a crime in another
jurisdiction that may be a predicate conviction that
would disallow the use of a suspended imposition of
sentence for other offenses. This conforms with other
statutes that require that a predicate offense in
another jurisdiction be only similar to an offense in
Alaska. Examples include AS 12.55.145(a) (presumptive
sentencing), AS 11.41.320(a)(5) (third degree
assault), and AS 11.41.110(a)(5) (murder in the second
degree).
Ms. Carpeneti told the committee that she had never seen a
judge give a suspended imposition of sentence for a person
convicted of the crimes listed, but she thought it was best
to say it was not appropriate.
· Section 14 adds to the conditions of probation that
may be imposed on a person convicted of a sex offense.
It gives the court discretion to order the person to
submit e-mail addresses and other networking addresses
to his or her probation officer, who would be required
to give this information to the Troopers and to the
local law enforcement agency. If the person was
convicted of sexual abuse of a minor or an offense
related to child pornography, it gives the court
discretion to prohibit the person from using the
Internet site, communicating with children under 16
years of age, or possessing or using a computer.
Ms. Carpeneti detailed that discretionary probationary
terms or conditions of probation may be imposed by a judge
in particular cases (page 7); a person convicted of sex
offenses may have limits imposed on their ability to use
the Internet or other electronic communications. The
conditions are set at the discretion of the court and have
to be reasonably related to the offense and the offender.
Subsection (2) allows the court reasonable discretion to
prohibit people convicted of sexual abuse of a minor or
child pornography offenses from using the Internet or even
possessing or using a computer.
· Section 15 amends the aggravating factor at sentencing
that allows the court to increase a sentence above the
sentencing range if the defendant knew that the victim
was particularly vulnerable. It does this by adding
the consumption of alcohol or drugs as factors that
might make a victim particularly vulnerable.
· Section 16 adds two new aggravating factors to the
sentencing law. First, it allows the court to increase
a sentence above the sentencing range for a crime (AS
11.41) committed against a person that the defendant
was dating or with whom the defendant has engaged in a
sexual relationship. Second, it allows the court to
increase the sentence if the defendant is convicted of
sexual abuse of a minor or distribution of indecent
material to minors if the defendant is 10 years or
more older than the victim.
Ms. Carpeneti detailed that Sections 15 and 16 allow three
new aggravating factors for sentencing for people who are
convicted of certain crimes. The first is found on page 7
and allows aggravation of a sentence if the victim was
vulnerable due to the consumption of alcohol or drugs. The
state has to prove the factors beyond a reasonable doubt
before a court can aggravate a sentence. Another is found
on page 8, and concerns a defendant convicted of an AS
11.41 crime (homicide, sexual offenses, and assaults) who
had a dating or sexual relationship with the victim. She
noted that current law allows an aggravating factor if
there is a family relationship; the bill would expand this.
The third aggravating factor proposed in the bill that
would be new would involve cases of sexual abuse or
distribution of child pornography when the defendant is 10
or more years older than the victim.
· Section 17 and 18 add a new provision to sex offender
registration law that requires a person present in
Alaska, who is convicted of an offense out of state
that requires registration in that jurisdiction, to
register in Alaska. This requirement would apply even
if Alaska does not have a criminal provision similar
to the crime in the other state that requires
registration there. A person would have to register
for 15 years if convicted of only one offense, and for
life if convicted for two or more offenses.
Ms. Carpeneti provided examples to illustrate the new
provision. Lewd and lascivious acts against a child in
California requires that the perpetrator of the offense
acted either to gratify him or herself or gratify the
victim; Alaska state law does not require proof of the
element. In Alaska, it is enough that touching, contact, or
penetration occurred. Alaska courts have held that the
crime of lewd and lascivious acts against a child are not
similar to a crime in Alaska; a person convicted of the
crime who moves to Alaska would be required to register.
She noted that Minnesota does not require everyone
convicted of rape to register and evaluates every
conviction separately. A person may be required to register
in Minnesota for breaking and entering if there was intent
to commit a rape, and they would have to register in Alaska
if they moved to Alaska.
2:48:39 PM
Co-Chair Hawker had concerns about curbing freedom for
something not against the law in Alaska. Ms. Carpeneti
explained that lewd and lascivious acts against a child
would be against the law in Alaska because it would be
sexual abuse of a minor; there is not the element of sexual
gratification.
Co-Chair Hawker reiterated concerns about the property
crime example. Ms. Carpeneti replied that burglary with
intent to commit a rape is a crime in Alaska, but
registration would not be required. House Bill 298 would
require registration in Alaska if the prosecution was able
to prove in Minnesota or another jurisdiction that a person
broke and entered with the intent to rape and was required
to register in that jurisdiction. She had not heard of any
particular sex offense that would give her pause; the
elements of the offense are enough different that they are
not similar to a crime in Alaska.
Co-Chair Hawker expressed confusion.
Co-Chair Stoltze referred to other things that people could
be convicted of in other states that were normal activities
in Alaska, including actions related to guns and defense of
property. He did not want import other attitudes. Ms.
Carpeneti noted previous testimony (in the House Judiciary
Committee) that DPS gets over 100 calls each month asking
whether a person would have to register as a sex offender
because of prior convictions if they moved to Alaska. She
asserted that one of the reasons to have the law was so
that Alaska was not a place people could go because they
did not have to register.
Co-Chair Stoltze reiterated concerns.
2:51:46 PM
Representative Doogan asked whether there was a
comprehensive list of applicable criminal codes from other
states. Ms. Carpeneti responded that registration as a sex
offender is an obligation, not a crime. She said she would
be glad to compile a list of examples.
Representative Fairclough stated that Alaska has one of the
highest rates individuals on sex offender lists. She added
that there are people looking for places to live where they
do not have to comply with registration by moving out of a
state that has convicted them. She did not want Alaska to
be a place where individuals who have perpetrated a sexual
crime against a child could hide.
Representative Fairclough asserted that there are two
options proposed in HB 298; one is a 15-year requirement.
She repeated concerns.
Co-Chair Stoltze asked how many contacts DPS received.
2:55:30 PM
Commissioner Masters replied that Ms. Carpeneti had given
the number 100. Ms. Carpeneti added that other testimony
had reported over 100 contacts.
· Section 19 authorizes the attorney general, in the
investigation of online enticement of a minor,
unlawful exploitation of a minor, and child
pornography crimes, to issue a subpoena to an Internet
service provider if there is reasonable cause to
believe that the Internet service account has been
used in the exploitation or attempted exploitation of
children. The subpoena may require the provider to
disclose the name, address, telephone connection
records, and other information about the account.
Other than use in the criminal case related to the
subpoenaed materials, the information obtained must
remain confidential.
Ms. Carpeneti noted that the new section had been added in
the House Judiciary Committee and provided for an
administrative subpoena if there is reasonable cause to
believe that a particular computer is pandering child
pornography. She detailed that the reason the subpoena
could be for more than name and address is to limit the
search to a particular user of a computer that has multiple
users.
Co-Chair Stoltze reported concerns that had been relayed to
his office. He wanted clarification about the whole
process. Ms. Carpeneti responded that Alaska courts have
determined that there is not a right to privacy related to
name and address. Getting the information from an Internet
service provider does not violate a constitutional right to
have the information. The police will use the information
obtained under the administrative subpoena to apply for a
search warrant to investigate the case further.
Ms. Carpeneti continued that the provision would be a time
saver in terms of identifying a particular computer that
there is reasonable cause to believe has pandered child
pornography.
Co-Chair Stoltze relayed that he had received emails
describing the search as random. Ms. Carpeneti responded
that the search was not random, but required reasonable
cause.
2:58:57 PM
Co-Chair Hawker questioned making the provision universal
so it could be used in the investigation of any felony
offense. Ms. Carpeneti replied that the information being
sought would be connected with a particular computer owned
by a person. Practically speaking, a police officer would
not get information in connection with homicides, rapes,
assaults, or thefts; that kind of evidence is not kept on
computers. The crimes addressed are related to victimizing
children and the distribution of child pornography via
computer.
Co-Chair Hawker thought the technology was used by people
with "extremist" views; he referred to cases where the
police had gotten information from a computer. He suggested
making the measure universal and not focused on one
particular offense. Ms. Carpeneti responded that the
challenge with child pornography cases is that the
perpetrator is not known. Police officers are investigating
cases where child pornography is being pandered via an
Internet service provider; there is no name and they do not
know who has the computer. Most conventional crimes are
different.
Ms. Carpeneti pointed to the next section, the "discovery
provision" starting on page 10:
· Section 20: amends Rule 16(b), Alaska Rules of
Criminal Procedure, by adding a prohibition of copying
or otherwise reproducing child pornography as part of
the discovery process in a criminal prosecution. The
material must still be available for inspection for
the defendant, defense counsel, and any person the
defense may seek to qualify as an expert witness at
trial. Federal law has a similar provision. 18
U.S.C.A. § 3509(m).
Ms. Carpeneti detailed that the section provides that child
pornography cannot be copied as a part of the criminal
discovery process. The federal law has the same provision.
The material has to be made available to defense counsel
and experts that are used, but the material cannot be
copied and sent to another party.
3:03:07 PM
Commissioner Masters informed the committee that Sergeant
DeGraaf worked in DPS's Internet Crimes Against Children
Task Force and was familiar with investigations related to
the issue.
DEREK DEGRAAF, SERGEANT, SUPERVISOR, TECHNICAL CRIMES UNIT,
ALASKA BUREAU OF INVESTIGATION, DIVISION OF ALASKA STATE
TROOPERS, testified that the three crimes discussed are now
conducted for the most part online through the Internet.
Child pornography is no longer transmitted through the
mail. There is a group of investigators and detectives in
Alaska that specifically target individuals that sell,
distribute, or trade child pornography (including images
and movies) through the Internet.
Mr. DeGraaf described the technology used to find people
who use contraband material; the investigators are able to
locate the user in Alaska and identify them based on an
email address or IP address. Typically, the IP address is
like a telephone number for the computer, but it can change
each day. Currently, the process requires serving a search
warrant to the Internet service provider. The process is
lengthy; it takes a couple hours to write a search warrant,
which is technical in nature and typically 30 pages in
length. A judge or magistrate then has to be seen before
the search warrant can be served; this is only to find out
if the IP address belongs to a specific address. Once the
information is secured, a second search warrant has to be
applied for in order to enter the premises to conduct an
investigation.
Mr. DeGraaf reported that the federal system and a dozen
states have enacted legislation allowing for issuance of a
subpoena to Internet service providers specifically for the
crimes being discussed in order to get subscriber records.
The FBI or immigration and customs get information such as
the person's name, the address of the house, and account
information such as when it was started, who pays for the
account, a credit card number, and the log showing the IP
addresses over a given time.
Mr. DeGraaf informed the committee that state investigators
have been able to use the process to identify thousands of
people within Alaska that are proactively using file
sharing software such as Limewire, FareShare, and other
free software available to anybody. The technology is being
used to get and distribute child pornography. He noted that
the same technology is used to pirate music and movies.
Mr. DeGraff referred to a printout with generic overviews
and some of the IP addresses in Alaska being used to file
share child pornography (copy on file). He pointed to an
image showing hundreds of people near Anchorage that are
using the technology to share the images and movies. He
included screen captures of Fairbanks, Juneau, and Barrow
to give other examples indicating that the problem is both
urban and rural. He noted that having the tool would give
the department a better way to quantify or qualify all the
IP addresses. Currently, the department does not have the
time or resources to be able to write hundreds of search
warrants to figure out who the people are and whether to
target them if they are registered sex offenders.
3:08:47 PM
Mr. DeGraaf continued that the new technology has created a
new problem for the unit; they cannot keep up with the
demand. Studies have shown that between 20 percent and 80
percent of people who possess child pornography have
sexually abused a child. He stressed that there are
children in the state who are being sexually abused. He
emphasized his commitment to the work and the importance of
acquiring the tool.
Co-Chair Stoltze asked whether subpoena powers were needed
in order to identify the addresses. Mr. DeGraaf responded
that the unit has access to a database that collects the IP
addresses that have and share the images; the database is
national and very comprehensive. He explained that
currently (and at any given time) he has ten cases that he
could pursue immediately with hundreds or thousands of
images that are being shared. He emphasized the difficulty
of getting to all of them. He wanted to be able to break
the data down so that it was useful, and to be able to
prioritize who to target. For example, it would be
expedient to have ten names to compare with records and
figure out which are sex offenders are and which are in a
position of authority over children. He listed the
positions of people who had been arrested recently,
including doctors, a psychologist, police officers, and
lawyers.
Co-Chair Stoltze asked for more information. Mr. DeGraaf
replied that they already know the IP addresses and have
verified that the address has the images or movies. The
tool would enable the process to go much faster and avoid
paperwork because the IP address could be quickly
translated into a name and address so that a search warrant
could be used to search the location.
3:13:02 PM
Representative Doogan queried the difference between the
first and second subpoena. Mr. DeGraaf replied that
currently investigators must get a search warrant to
identify the name and physical address on the IP account.
Next the investigator has to verify that the address is a
real house before a second search warrant is obtained to
investigate. House Bill 298 would change the first step;
the first subpoena would not be needed to identify the
location.
Representative Doogan summarized that the legislation would
give access to the name and address as well as to telephone
and banking or payment records. Mr. DeGraaf explained that
the primary Internet providers (GCI, ACS, AT&T) have the
information listed; all that information can be obtained
with the first search warrant. The subpoena would take the
place of the first search warrant to speed up the process.
Representative Kelly directed attention to page 5, lines 6
and 7 of the bill, related to a reasonable person finding
the lack of serious literary, artistic, political, or
scientific value. He opined that there had been abuse of
the standards recently. He asked why the value had to be
measured by the listed terms rather than just saying the
fact that a child is involved makes it wrong. Ms. Carpeneti
responded that the definition only applied to cartoon
pornography (page 4, lines 10 and 11); the definition does
not apply to current prohibitions of possession of child
pornography, because the U.S. Supreme Court has said that
cartoon pornography cannot be prohibited unless it is also
obscene. She did not think that could be changed.
3:18:37 PM
Representative Fairclough stated that she was not for or
against the issues being discussed, but she wanted people
to understand the consequence of doing nothing. She looked
forward to dialogue about the protection of privacy. She
turned to page 9, line 22 (Section 44.23.080, subpoena
powers). She asked whether the first step required a 30-
page application to a judge to get the name and address of
a potential perpetrator. Mr. DeGraaf replied that the
current search warrant that investigators have to write is
four pages long; the affidavit is 20 to 25 long because it
must define terms like "computer Internet" and acronyms.
The details have to be explained in order to withstand the
rigors of a trial.
Representative Fairclough queried protocols that would be
in place to secure the privacy of citizens. She did not
want the search for information about a person to be
arbitrary. She did not want law enforcement to be able to
come up with an address based on knowing the IP address,
for whatever reason; the information could aid a stalker,
for example. Ms. Carpeneti responded that the bill provides
that any information obtained pursuant to a subpoena is
confidential and must be destroyed if not used. The
information can only be used to obtain a search warrant in
order to investigate further.
Representative Fairclough asked whether there would be
oversight of the new tool, such as the peer review of
protocol used by nurses. She wanted to committee to know
that the tool would be used as intended and not as an
invasion of privacy.
3:24:31 PM
Mr. DeGraaf assured the committee that there are national
standards that must be followed by investigators in the
Internet Crimes Against Children Task Force. In addition,
investigators are specifically trained and licensed in
order to conduct investigations to make sure they are
obtaining and translating data correctly and appropriately
into a search warrant or subpoena. He reported that
investigators use peer review to check each other's work.
Ms. Carpeneti added that there would be review at the
attorney general's level, as the subpoena is issued at that
level. She suggested that the attorney general come back to
the legislature in a year and provide a confidential report
and overview of the subpoenas issued to be assured that the
tool was used sparingly and appropriately.
Representative Fairclough did not want the process used
sparingly if thousands of people are using contraband in
Alaska. She described [television] programs with police
exposing people with child pornography to make an example
of them. She pointed to images representing the number of
people in Anchorage and said she was disheartened. She
wanted a tool to prioritize addressing the issue, but she
urged caution to protect the individual rights of the
innocent.
3:29:23 PM
JEFFREY MITTMAN, EXECUTIVE DIRECTOR, ALASKA CIVIL LIBERTIES
UNION (ACLU) OF ALASKA (via teleconference), referred to a
March 19, 2010 letter to the co-chairs (copy on file). He
appreciated the committee's understanding of the
constitutional concerns involved. With respect to the
subpoena power, he clarified that ACLU of Alaska does not
take the position that law enforcement should not have the
right to obtain the information. They focus on the
procedural process (the constitutional guarantees). The
bill with the amendment added in JUD suggests that over 200
years of practice of separation of powers should be done
away with. Police enforcement would have the opportunity to
request records (private financial information, phone
numbers, and other materials) on its own without
independent judicial review. He emphasized that the same
powers have been abused when they were granted at the
federal level (under the Patriot Act); there is evidence
that the FBI was using the process to obtain information
such as the phone numbers of ex-girlfriends. The lack of
independent, judicial oversight could open the situation to
abuse.
Mr. Mittman addressed the issue of registration
requirements for sex offenders. He stressed that the
intention is to protect Alaskans and make appropriate
policy judgments as to the best balance for registration
and identification. Provisions in HB 298 could involve the
state in lengthy litigation because of elements that are
currently unconstitutional. He offered to work with the
committee on minor revisions.
Representative Gara referred to a concern about Section 20
described in Mr. Mittman's letter. The section would limit
the material a defendant can have accessible to them to
prepare for trial. He questioned whether the images could
be withheld from the defense. Mr. Mittman pointed to page
11 of the CS, lines 5 through 7, and replied that the
section states that material is deemed "reasonably
available" at a prosecution or law-enforcement facility to
allow "ample opportunity for inspection." He stated that
the problem was that defense counsel and defense counsel
experts would be put in the position of having to do their
preparation at the location of the prosecution and to use
the prosecution's computer disk. He pointed out that it was
conceivable that after forensic work was done by a defense
expert, the prosecution could review the disk and determine
what was looked at and how much time was spent on each
image; this would put the defense at a disadvantage. He
acknowledged the importance of maintaining control over the
images. He referred to information provided in the letter
of an order fashioned by a Washington state court that
ensures protections are in place so that the images are not
widely available but kept under lock and key and destroyed
afterwards.
3:35:42 PM
Representative Gara asked for clarification about the
material. Mr. Mittman replied that the issue is that a copy
can be made and provided to defense counsel for their use
in their offices with their experts; the problem is that by
saying only the original is available and that all work
needs to be done at a time, place, and choosing of the
prosecution puts the defense at a disadvantage.
Essentially, the prosecution has the material and the
defense has to ask in order to prepare, which is not
constitutionally acceptable.
Representative Fairclough referred to the letter (page 2)
saying that the computer source files would require review
at length by an expert witness. She asked about whether the
hard drives would be accessible, which could result in
tampering with physical evidence. She requested additional
information about how the material would be accessed. Mr.
Mittman replied that ACLU of Alaska is not proposing that
it is constitutionally required for the state or
prosecution to turn over the original. The letter explains
that the Washington state court upheld that a mirror image
of the drive was created, enabling the defense to perform
the forensic analysis needed. The defense was required to
maintain a log of all viewers, return the mirror image
afterwards, ensure that all copies are destroyed, and prove
to prosecution that copies were destroyed, giving the
defense the same access to material as the prosecution and
leveling the playing field.
3:39:58 PM
Representative Fairclough asked whether the information
could be provided by redacting only the image. Mr. Mittman
replied that the issue (raised by other provisions in HB
298) was whether an image was of an actual child or
created. The forensic expert would review what would be a
key piece of evidence. He stated that unfortunately, the
image would have to be carefully reviewed.
DAVID KAZARIAN, BIG LAKE, ALASKA (via teleconference), read
from a prepared letter:
We all want to protect children from sexual abuse;
however, we also need to consider all of the children.
The section would have the effect of ruining the lives
of countless children who now live here or may live
here who are being unconstitutionally banished from
society for what their parent did decades ago. This
state has recognized the retroactive implementation of
the sex offender registry is unconstitutional as ruled
in the Alaska Supreme Court in 2008. I am writing you
about the effect of proposed HB 298. The bill states
that sex offenders and child kidnappers required to
register elsewhere should not be able to move to
Alaska and avoid registration. The bill would make it
mandatory for a registered sex offender or child
kidnapper from another state to register in Alaska
when the intention is to live in Alaska. This would
apply even when Alaska does not have a law that is
similar to the crime that the person has committed.
Other states have violated the federal state bans on
[unclear] law. If Alaska puts through HB 298 with the
above paragraph, it would violate both the federal and
state constitutions on a number of points. Number one:
the right to equal protection. Treating people who
move here differently from those who already reside
here is a violation of the right to equal protection.
Number two: the Alaska Supreme Court ruling in 2008 on
[unclear] law. If a person did something 40 years ago,
and they have not committed any more crimes, and now
have children, the effect of applying these laws ruins
the lives of the children. They can't have friends,
their parents can't go to sporting events with them,
and they have legally not committed any more crimes
for 30 or 40 years. Number four: Sex offenders and
child kidnappers required to register elsewhere should
not be able to move to Alaska to avoid registration.
If Alaska law states it is unconstitutional under
Alaska law for them to register, then one cannot hold
a person who lives in Alaska to the laws and standards
of another state, not under any type of [unclear]
parole. If they have served out their sentence, then
the courts have no power over them. There are other
states that have crazy, archaic laws, like Louisiana
has a law that oral sex is against the law. If you get
caught having oral sex in Louisiana, you are a sex
offender. If they move to Alaska, it would not be
right to put them on the sex offender registry for a
law that is not a law in Alaska. Punishing a person
for a crime which they did many decades ago and have
not re-offended ruins the lives of the person's whole
family, the wife, the children are all banished from
society once a person is placed on the registry.
Congressman Bobby Scott, in a sworn hearing on the Sex
Offender Notification Registration Act, stated on the
record that once a person is placed on the registry,
basically their life is over. This new HB 298,
including wording about having registering here is not
only unconstitutional in many areas, but inhumane,
immoral, and just plain wrong. If you truly want to
protect children and society and uphold your oath of
office to uphold the constitution, you will work hard
to protect the children of the families of those who
live here and any who move here with a family member
who committed a crime decades ago. If that person has
not re-offended and has served their time, why would
anyone want to violate the constitutional ban to
punish the person and his family for the rest of their
lives.
Mr. Kazarian urged teaching adults who have children and
children how to prevent abuse from happening. He
recommending spending money on prevention and education on
how to prevent the crimes.
3:48:58 PM
DAVID HOROWITZ, EXECUTIVE DIRECTOR, MEDIA COALITION, NEW
YORK CITY (via teleconference), referred to written
testimony, "Memorandum in Opposition to Alaska House Bill
298 as Amended" (copy on file). He explained that Media
Coalition is a group of trade associations that defend the
first amendment rights of publishers, booksellers,
librarians, recording, motion picture, and video game
producers, and their retailers and consumers in the United
States. He reviewed two concerns about HB 298. First,
Section 8 refers to material that appears to include a
child definition and is tied to Supreme Court cases. The
definition contains only two prongs (prurient interest and
serious value) of a three-prong test for obscenity; the
patently offensive prong is omitted. Media Coalition's
second concern was connected with Section 9 (material
harmful to minors being distributed to minors); they feel
the law is appropriate applied to bookstores or retail
stores, but they have concerns when it is applied to the
Internet. He stressed the difficulty of distinguishing
between a minor and an adult. Somebody distributing on the
Internet would have the choice of either limiting speech to
what is appropriate for a minor or to hide the speech,
which would reduce sales. He referred to cases listed in
the memorandum that take up the point. He felt the problem
could be solved if the statute in the Internet context was
tailored differently.
3:53:26 PM
Representative Fairclough asked for more information about
Media Coalition. Mr. Horowitz replied that the coalition
has a board of directors made of representatives of member
associations, such as government affairs and general
councils. He offered to provide the board of directors.
Representative Fairclough requested the names and contact
addresses of the coalition. She asked whether the board
made a formal resolution to oppose HB 298. Mr. Horowitz
answered that the board did not. He stated that the
coalition's mission is to monitor bills that they believe
are not constitutionally correct and to oppose them where
appropriate.
Representative Fairclough asked whether Mr. Horowitz was
given free latitude to choose which legislation to oppose
without talking to the board of directors. Mr. Horowitz
replied that unusual laws would be discussed.
Representative Fairclough queried other legislation that
the coalition had opposed. Mr. Horowitz responded that in
the Internet context there has been ten or fifteen states,
including Vermont, South Carolina, Virginia, New York, New
Mexico, and Arizona over a ten-year period. The Alaska
measure was the only one in the current legislative season
that addresses the issues.
3:56:16 PM
Representative Fairclough wanted to establish the broad
position of the organization on similar issues. She asked
if he had authority to speak on behalf of the board. Mr.
Horowitz responded that he is not an independent spokesman
for any of the individual organizations; the charge is to
identify where legislation would inhibit mainstream
producers and retailers because of constitutional problems.
Representative Fairclough asked what the response would be
if she contacted member organizations. Mr. Horowitz replied
that each organization would have to speak for itself.
Co-Chair Stoltze noted that public testimony would re-open
if needed in the future.
Commissioner Masters stated that DPS believed HB 298 met
constitutional challenges.
HJR 48 was HEARD and HELD in Committee for further
consideration.
ADJOURNMENT
The meeting was adjourned at 3:59 PM.