Legislature(1999 - 2000)
02/23/2000 01:17 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE February 23, 2000 1:17 p.m. MEMBERS PRESENT Representative Pete Kott, Chairman Representative Joe Green Representative Norman Rokeberg Representative Jeannette James Representative Lisa Murkowski MEMBERS ABSENT Representative Eric Croft Representative Beth Kerttula COMMITTEE CALENDAR HOUSE BILL NO. 163 "An Act relating to qualifications of voters; relating to the registration of voters; relating to election districts and officials; relating to election procedures and ballots; relating to special procedures for elections; relating to nomination of candidates; relating to national elections; relating to special elections and appointments; relating to constitutional amendments; relating to election offenses and corrupt practices; relating to election pamphlets; relating to the deferral of jury service for certain election officials; relating to an exemption from the State Procurement Code regarding election ballots; relating to the provision and use of mailing addresses on permanent fund dividend applications for election purposes; relating to the inclusion of voter registration forms with permanent fund dividend applications; making conforming amendments in references to 'election district' and 'chairman'; and providing for an effective date." - HEARD AND HELD HOUSE BILL NO. 354 "An Act relating to criminal sexual inducement of a minor, to distribution of pornography to minors, and to sex offenses." - HEARD AND HELD HOUSE BILL NO. 338 "An Act relating to crimes involving computers, access devices, other technology, and identification documents; relating to the crime of criminal impersonation; relating to crimes committed by the unauthorized access to or use of communications in electronic storage; and providing for an effective date." - HEARD AND HELD HOUSE BILL NO. 366 "An Act relating to the rights of crime victims, the crime of violating a protective order or injunction, mitigating factors in sentencing for an offense, and the return of certain seized property to victims; expanding the scope of the prohibition of compromise based on civil remedy of misdemeanor crimes involving domestic violence; amending Rules 10, 11, 13, 16, and 17, Alaska District Court Rules of Civil Procedure and Rule 9, Alaska Rules of Administration." - MOVED HB 366 OUT OF COMMITTEE PREVIOUS ACTION BILL: HB 163 SHORT TITLE: DIVISION OF ELECTIONS Jrn-Date Jrn-Page Action 3/26/99 583 (H) READ THE FIRST TIME - REFERRAL(S) 3/26/99 584 (H) STA, JUD, FIN 2/03/00 (H) STA AT 8:00 AM CAPITOL 102 2/03/00 (H) <Bill Postponed to 2/8> 2/08/00 (H) STA AT 8:00 AM CAPITOL 102 2/08/00 (H) Moved CSHB 163(STA) Out of Committee 2/08/00 (H) MINUTE(STA) 2/09/00 2138 (H) STA RPT CS(STA) NT 4DP 1NR 2/09/00 2139 (H) DP: JAMES, SMALLEY, KERTTULA, WHITAKER; 2/09/00 2139 (H) NR: HUDSON 2/09/00 2139 (H) FISCAL NOTE (GOV) 2/16/00 (H) JUD AT 1:00 PM CAPITOL 120 2/16/00 (H) Scheduled But Not Heard 2/23/00 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 354 SHORT TITLE: SEXUAL INDUCEMENT OF A MINOR/PORNOGRAPHY Jrn-Date Jrn-Page Action 2/09/00 2146 (H) READ THE FIRST TIME - REFERRALS 2/09/00 2147 (H) JUD, FIN 2/09/00 2147 (H) REFERRED TO JUDICIARY 2/21/00 (H) JUD AT 1:00 PM CAPITOL 120 2/21/00 (H) Heard & Held 2/21/00 (H) MINUTE(JUD) 2/23/00 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 338 SHORT TITLE: CRIMES INVOLVING TECHNOLOGY OR I.D. Jrn-Date Jrn-Page Action 2/04/00 2095 (H) READ THE FIRST TIME - REFERRALS 2/04/00 2095 (H) JUD, FIN 2/04/00 2096 (H) 3 FISCAL NOTES (ADM, LAW, DPS) 2/04/00 2096 (H) GOVERNOR'S TRANSMITTAL LETTER 2/04/00 2096 (H) REFERRED TO JUDICIARY 2/23/00 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 366 SHORT TITLE: CRIME VICTIMS RIGHTS & DOMESTIC VIOLENCE Jrn-Date Jrn-Page Action 2/11/00 2177 (H) READ THE FIRST TIME - REFERRALS 2/11/00 2178 (H) JUD, FIN 2/11/00 2178 (H) 2 INDETERMINATE FISCAL NOTES (ADM, COR) 2/11/00 2178 (H) 2 ZERO FISCAL NOTES (LAW, DPS) 2/11/00 2178 (H) GOVERNOR'S TRANSMITTAL LETTER 2/23/00 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER GAIL FENUMIAI, Election Program Specialist Division of Elections Office of the Lieutenant Governor P.O. Box 11007 Juneau, Alaska 99811-0017 POSITION STATEMENT: Explained Amendment 1 to HB 163. GAYLE GARRIGUES, Staff to Representative Tom Brice Alaska State Legislature Capitol Building, Room 426 Juneau, Alaska 99801 POSITION STATEMENT: Explained Version G of HB 354 on behalf of sponsor. ANNE CARPENETI, Assistant Attorney General Legal Services Section-Juneau Criminal Division Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 POSITION STATEMENT: Testified on Version G of HB 354 that the bill has come a long way but the department still has problems with Section 1, and offered draft amendment for Sections 1 and 2; presented HB 338 and HB 366. LESIL McGUIRE, Legislative Assistant to Representative Pete Kott and Committee Aide, House Judiciary Standing Committee Alaska State Legislature Capitol Building, Room 118 Juneau, Alaska 99801 POSITION STATEMENT: As committee aide, offered information pertaining to the use of gender-neutral terms in legislation. BLAIR McCUNE, Deputy Director Public Defender Agency Department of Administration 900 West 5th Avenue, Suite 200 Anchorage, Alaska 99501-2090 POSITION STATEMENT: Testified on HB 338; expressed concerns. DAVID HUDSON, Lieutenant Division of Alaska State Troopers Department of Public Safety 5700 East Tudor Road Anchorage, Alaska 99507-1225 POSITION STATEMENT: Testified that the Department of Public Safety is looking forward to HB 338 moving forward. ROBERT BUTTCANE, Juvenile Probation Officer Youth Corrections Division of Family and Youth Services Department of Health and Social Services P.O. Box 110630 Juneau, Alaska 99811 POSITION STATEMENT: Testified in support of HB 338, especially the use of the term "access device," but said the bill may need more work. ACTION NARRATIVE TAPE 00-18, SIDE A Number 0001 CHAIRMAN PETE KOTT called the House Judiciary Standing Committee meeting to order at 1:17 p.m. Members present at the call to order were Representatives Kott, Green and James. Representative Murkowski arrived just after the call to order. HB 163 - DIVISION OF ELECTIONS CHAIRMAN KOTT announced that the first item of business would be HOUSE BILL NO. 163, "An Act relating to qualifications of voters; relating to the registration of voters; relating to election districts and officials; relating to election procedures and ballots; relating to special procedures for elections; relating to nomination of candidates; relating to national elections; relating to special elections and appointments; relating to constitutional amendments; relating to election offenses and corrupt practices; relating to election pamphlets; relating to the deferral of jury service for certain election officials; relating to an exemption from the State Procurement Code regarding election ballots; relating to the provision and use of mailing addresses on permanent fund dividend applications for election purposes; relating to the inclusion of voter registration forms with permanent fund dividend applications; making conforming amendments in references to 'election district' and 'chairman'; and providing for an effective date." [Before the committee was CSHB 163(STA).] Number 0064 REPRESENTATIVE JAMES, speaking as the sponsor, made a motion to adopt Amendment 1 [1-0769\A.1, Kurtz, 1/25/00], which read: Page 1, line 12, following "'chairman';": Insert "relating to initiative, referendum, and recall petitions;" Page 27, following line 11: Insert new bill sections to read: "* Sec. 67. AS 15.45.110(a) is amended to read: (a) The petitions may be circulated throughout the state [ONLY BY A SPONSOR AND] only in person. * Sec. 68. AS 15.45.110(c) is amended to read: (c) A circulator [SPONSOR] may not receive payment or agree to receive payment that is greater than $1 a signature, and a person or an organization may not pay or agree to pay an amount that is greater than $1 a signature, for the collection of signatures on a petition. * Sec. 69. AS 15.45.110(e) is amended to read: (e) A person or organization that violates (c) or (d) [(b) - (d)] of this section is guilty of a class B misdemeanor. * Sec. 70. AS 15.45.130 is amended to read: Sec. 15.45.130. Certification of circulator [SPONSOR]. Before being filed, each petition shall be certified by an affidavit by the person [SPONSOR] who personally circulated the petition. The affidavit must state in substance that (1) the person signing the affidavit meets the residency, age, and citizenship qualifications of AS 15.05.010 [IS A SPONSOR], (2) the person is the only circulator of that petition, (3) the signatures were made in the circulator's [SPONSOR'S] actual presence, (4) to the best of the circulator's [SPONSOR'S] knowledge, the signatures are those of the persons whose names they purport to be, (5) the signatures are of persons who were qualified voters on the date of signature, (6) the person has not entered into an agreement with a person or organization in violation of AS 15.45.110(c), (7) the person has not violated AS 15.45.110(d) with respect to that petition, and (8) the circulator [SPONSOR] prominently placed, in the space provided under AS 15.45.090(5) before circulation of the petition, in bold capital letters, the circulator's [SPONSOR'S] name and, if the circulator [SPONSOR] has received payment or agreed to receive payment for the collection of signatures on the petition, the name of each person or organization that has paid or agreed to pay the circulator [SPONSOR] for collection of signatures on the petition. In determining the sufficiency of the petition, the lieutenant governor may not count subscriptions on petitions not properly certified. * Sec. 71. AS 15.45.340 is amended to read: Sec. 15.45.340. Circulation [BY SPONSOR]. The petitions may be circulated throughout the state [ONLY BY A SPONSOR AND] only in person. * Sec. 72. AS 15.45.360 is amended to read: Sec. 15.45.360. Certification of circulator [SPONSOR]. Before being filed, each petition shall be certified by an affidavit by the person [SPONSOR] who circulated the petition. The affidavit shall state in substance that (1) the person signing the affidavit meets the residency, age, and citizenship qualifications of AS 15.05.010 [IS A SPONSOR], (2) the person is the only circulator of the petition, (3) the signatures were made in the circulator's [SPONSOR'S] actual presence, and (4) to the best of the circulator's [SPONSOR'S] knowledge, the signatures are the signatures of persons whose names they purport to be. In determining the sufficiency of the petition, the lieutenant governor may not count subscriptions on petitions not properly certified. * Sec. 73. AS 15.45.580 is amended to read: Sec. 15.45.580. Circulation [BY SPONSOR]. The petitions may be circulated [ONLY BY A SPONSOR AND] only in person throughout the state or senate or house [ELECTION] district represented by the official sought to be recalled. * Sec. 74. AS 15.45.600 is amended to read: Sec. 15.45.600. Certification of circulator [SPONSOR]. Before being filed, each petition shall be certified by an affidavit by the person [SPONSOR] who personally circulated the petition. The affidavit shall state in substance that (1) the person signing the affidavit meets the residency, age, and citizenship qualifications of AS 15.05.010 [IS A SPONSOR], (2) the person is the only circulator of that petition or copy, (3) the signatures were made in the circulator's [SPONSOR'S] actual presence, and (4) to the best of the circulator's [SPONSOR'S] knowledge, the signatures are those of the persons whose names they purport to be. In determining the sufficiency of the petition, the director may not count subscriptions on petitions not properly certified." Renumber the following bill sections accordingly. Page 31, line 20, following "AS 15.20.740;": Insert "AS 15.45.110(b);" Page 31, line 21: Delete "sec. 88" Insert "sec. 96" Page 32, line 1: Delete "15.45.580," Page 32, line 9: Delete "Section 85" Insert "Section 93" Page 32, line 10: Delete "sec. 87" Insert "sec. 95" Delete "1999" Insert "2000" [END OF AMENDMENT 1] Number 0095 GAIL FENUMIAI, Election Program Specialist, Division of Elections, Office of the Lieutenant Governor, came forward at the request of Representative James. She explained that Amendment 1 was introduced to make changes to the initiative petition and the referendum and recall petition statutes, which are in conflict with a recent United States Supreme Court ruling in Buckley v. American Constitutional Law Fund. That court ruled that circulators of initiative petitions don't have to be registered voters in Alaska, whereas Alaska's current law is contrary to that. That court case also stated that petition circulators don't have to identify themselves by wearing a badge, whereas in 1998 the Alaska State Legislature passed legislation requiring that. Therefore, the changes in Amendment 1 bring Alaska's statutes into compliance with the U.S. Supreme Court case. Number 0217 CHAIRMAN KOTT asked whether there was any objection to Amendment 1. He indicated it had originally been suggested by Representative Croft. Noting that there was no objection, he announced that Amendment 1 was adopted. Number 0240 REPRESENTATIVE MURKOWSKI asked whether, with this change, petition circulators are required to do anything in terms of identifying themselves. MS. FENUMIAI answered no. A person's name is printed on the petition booklet in front of him or her while gathering signatures, but the person is no longer required to state his or her name while circulating a petition. In response to a further question about "checks" to ensure that persons are who they claim to be, Ms. Fenumiai explained that the petition circulator signs an affidavit on the back of the booklet saying the signatures were gathered in that person's presence and that he or she was the only circulator of the petition booklet. That is in current statute. Number 0350 REPRESENTATIVE GREEN pointed out that the bill before the committee is CSHB 163(STA). However, Amendment 1 amends the original version of the bill. He asked Representative James what the intent is. REPRESENTATIVE JAMES said she didn't know the reason, as the same drafter had written the original version, then CSHB 163(STA), then Amendment 1, in that order, and would draft the new committee substitute (CS). It was a drafting error. She suggested the committee look at the new CS before moving it from committee. She informed members that Amendment 1 adds a whole new issue to the bill. Number 0536 REPRESENTATIVE GREEN and CHAIRMAN KOTT pointed out that there are a couple of other minor details, as well. [Informal discussion followed as the committee went through the two versions of the bill and the amendment.] Number 0986 REPRESENTATIVE ROKEBERG noted that the bill contains the word "chairperson" instead of "chairman." CHAIRMAN KOTT, REPRESENTATIVE GREEN AND REPRESENTATIVE MURKOWSKI pointed out that Amendment 1 says "chairman," however. MS. FENUMIAI reported that Legislative Legal Services had suggested changing all the references from "chairman" to "chairperson." CHAIRMAN KOTT concluded that the title should read "chairperson" as well, then. REPRESENTATIVE GREEN AND REPRESENTATIVE ROKEBERG said they didn't like it. REPRESENTATIVE JAMES indicated she didn't want to go through this issue on the floor again. Number 1075 CHAIRMAN KOTT agreed, saying he would rather not go through the exercise of addressing "chairman" versus "chairperson" on the floor again, but would encourage doing it there rather than in committee. Number 1086 REPRESENTATIVE ROKEBERG nonetheless made a motion to adopt a conceptual amendment to change the language throughout the bill to "chairman" rather than "chairperson." REPRESENTATIVE MURKOWSKI objected for purposes of discussion. She suggested that if those changes are made in the bill, perhaps they should go back into the election statutes and revise the whole chapter. She said she isn't interested in completely revising all statutes to make them "gender-neutral." She proposed the possibility of sending a letter to Legislative Council, however, requesting that they look into this to see whether there is a policy. Although not strongly on either side of the issue, Representative Murkowski said she is a proponent of consistency. If they are going to use it one way, they should use it throughout. REPRESENTATIVE ROKEBERG remarked that he would advocate for a policy that "chairman" can be used in the statutes but that "the reference to the chairman could be at the discretion of that chairperson, and any other words interchangeably meaning the same would be acceptable as a matter of law." He suggested some flexibility, saying it is a matter of personal preference now. REPRESENTATIVE GREEN agreed that if it is done, it should be done throughout the statutes. For example, the statute before them refers to another statute that still has "chairman" in it. Number 1354 CHAIRMAN KOTT announced that if it is the will of this committee, they can address it now and submit a letter - on whatever is decided upon - as a recommendation to Legislative Council to review the statutes to either use "chairman" throughout the statutes or to go to the politically correct term, whatever that may be. REPRESENTATIVE ROKEBERG suggested instructing the Legislative Council that the Revisor of Statutes would take it up after the legislature has made a decision, to avoid these debates. Number 1405 REPRESENTATIVE MURKOWSKI expressed concern about what else is in Alaska's statutes currently that isn't "politically correct." She said she didn't even want to suggest what those items might be. She indicated it might open a Pandora's box of issues that they wouldn't want to resolve right now. REPRESENTATIVE ROKEBERG agreed but stated that the earlier "flap" about same-sex marriage had been caused by the revisors' changing of the statute on their own, resulting in a substantive revision because of trying to make the statute gender-neutral by changing "men and women" into "persons," or whatever the exact wording was. He offered to withdraw the amendment to move the process along if there is to be a letter to the Legislative Council. Number 1495 CHAIRMAN KOTT suggested that would be more acceptable to the committee than debating this. He announced that a letter would be submitted to Legislative Council asking them to come up with some consistent term throughout, so that Legislative Council, after their own debate of the issue, can direct the Revisor of Statutes about the drafting manual from here on out. Number 1511 REPRESENTATIVE ROKEBERG withdrew his amendment. CHAIRMAN KOTT indicated the intention of bringing a new CS before the committee that includes Amendment 1, to ensure that all the sections are placed appropriately throughout the bill. He thanked Ms. Fenumiai, stating his belief that no other testifiers wished to speak at the moment. He announced that HB 163 would be held over until the coming Friday, at which time there would be a letter for everyone's review that would accompany the bill. REPRESENTATIVE ROKEBERG restated the need to ask Legislative Council about the issue and mentioned getting further guidance from Legislative Legal Services. [HB 163 was held over.] HB 354 - SEXUAL INDUCEMENT OF A MINOR/PORNOGRAPHY CHAIRMAN KOTT announced that the next item of business would be HOUSE BILL NO. 354, "An Act relating to criminal sexual inducement of a minor, to distribution of pornography to minors, and to sex offenses." He pointed out that there was a new proposed committee substitute (CS). [The bill had been introduced at the previous meeting, but no testimony was heard other than from Ms. Garrigues, staff to Representative Brice, sponsor.] Number 1620 REPRESENTATIVE ROKEBERG made a motion to adopt as a work draft Version G [1-LS1339\G, Luckhaupt, 2/23/00]. There being no objection, it was so ordered and Version G was before the committee. Number 1650 GAYLE GARRIGUES, Staff to Representative Tom Brice, Alaska State Legislature, came forward on behalf of the sponsor. She explained that Version G basically makes three changes. The first is relatively minor, in Section 1, changing some of the ages of various participants; although the original version was consistent with the child abuse statutes, in this particular application it didn't make a lot of sense. The change in Section 2 is significant. The original bill had made a new offense called "distribution of pornography to minors"; as she and Representative Brice had heard from more and more people, however, it looked like a potential First Amendment problem. MS. GARRIGUES told members the goal was to try to stop people when they are "grooming" minors by providing pornographic materials. However, she was persuaded that it wasn't worth getting into a fight in terms of defining those and dealing with all the possible exceptions in terms of potentially pornographic but otherwise legitimate activities. Therefore, that is dealt with at the end of a case, as an aggravating factor. If a person commits one of these sex offenses and, in the process, uses these materials to "groom" the child, the court can consider that as an aggravator to use at sentencing. Ms. Garrigues pointed out that because Version G eliminates the new crime of distribution of pornography, there is no need to further amend the statutes regarding sex offenders. Therefore, Section 3 was dropped. Number 1777 REPRESENTATIVE ROKEBERG said he understands the Internet connection, but this establishes what he takes to be a new crime of inducement. He stated his understanding that sexual assault in the fourth degree is the lowest level now. He asked whether other states have an inducement statute criminalizing this type of activity. MS. GARRIGUES responded that as she understands it, other states are in various stages in terms of working on this area. The Internet is relatively recent, and the concern here is people essentially inducing and soliciting children over the Internet. She mentioned that there are a couple cases in the Fairbanks area where that has happened. REPRESENTATIVE ROKEBERG said there is no reference to that. He asked what will constitute inducement. He further asked whether it will be defined by Webster's Dictionary or is in Alaska case law. MS. GARRIGUES said she doesn't believe "induce" is a word that is so specific that it needs a definition outside of how it is commonly understood. There is no legal definition of inducement that she is aware of. For the elements of this particular offense, an adult of a certain age engages in a "course of conduct" with a person who is under a certain age, with the intent to induce or get this person to engage in the various sexual activities that are listed in Alaska's code and defined there already. It doesn't specifically refer to the Internet, however, because it is expected that people may initiate these contacts through the Internet but that the course of conduct may extend to using the telephone, the mail or paging devices, for example. Number 1887 REPRESENTATIVE ROKEBERG asked whether it is correct that a 19-year- old who has been talking to a 16-year-old about some type of sexual activity would be guilty of a class C felony. MS. GARRIGUES specified that the victim would have to be under 16 years of age. In Alaska's present code, a 19-year-old who engages in sexual relations with a 15-year-old would be guilty of sexual abuse of a minor in the second degree ("SAM 2"). REPRESENTATIVE ROKEBERG pointed out that that involves contact, whereas this just asks for it. MS. GARRIGUES agreed. REPRESENTATIVE ROKEBERG asked whether this crime would, then, be included under Megan's Law and require registration as a sexual offender in Alaska for 15 years. MS. GARRIGUES affirmed that it would fall within the sex offender registration statutes. Number 1924 REPRESENTATIVE GREEN alluded to the fact that the title, the beginning of new section AS 11.41.452, and subsection (c) call this "criminal sexual inducement," whereas the text in subsection (a) says "commits the crime of criminal sexual solicitation." He asked why that terminology is used. MS. GARRIGUES said that is a question for Legislative Legal Services, whose recommendation she had followed regarding that. She noted that Mr. Luckhaupt, the drafter, was not present. REPRESENTATIVE GREEN requested a response from Anne Carpeneti. Number 1978 ANNE CARPENETI, Assistant Attorney General, Legal Services Section- Juneau, Criminal Division, Department of Law (DOL), came forward, noting that the department has worked with the sponsor and his staff on this bill. She reported that Version G has come a long way towards addressing problems, but the DOL still has a problem with Section 1 for a couple of reasons. Bringing attention to page 1, line 7, she pointed out that "course of conduct" is not defined in Alaska's statutes, and it has proven to be problematic in other areas. For example, when working on child murder legislation the previous year, they had changed murder in the first degree from a pattern of practice of abuse to two or more acts, just because the department was never able to prove a pattern of practice of mistreating a child. MS. CARPENETI explained that the other problem, mentioned by Representative Rokeberg, is with the ladder of the level of offenses. She clarified that Alaska does have solicitation to commit sexual abuse of a minor. For sexual abuse of a minor, the underlying offense is an unclassified felony. Solicitation of that offense is a class A felony; this would bring that offense down to a class C felony. On the other hand, Alaska has sexual abuse of a minor in the fourth degree, a class A misdemeanor. Solicitation of that conduct would be a class B misdemeanor, which this bill would change to a class C felony. Ms. Carpeneti stated: So, any way you look at it, the prosecution's going to lose if it is a different level because if we charge solicitation of sexual abuse of a minor in the first degree, the defendant's going to come in and say, "This is a more specific statute; prosecute me under this one." And in the same regard, if it's solicitation to commit the lower offense, ... we're going to have to argue about where that is in terms of a penalty. Number 2068 MS. CARPENETI offered a suggestion on behalf of the DOL which she acknowledged the sponsor may not be enthusiastic about. If the purpose is to discourage "grooming" of victims over the Internet, the DOL suggests that solicitation for the offense be the same level as the offense itself. That would eliminate problems with having a different crime called "inducement." Although the header for the statute is "inducement," she explained, when proving a case the department doesn't deal with the header. The element of that would be criminal solicitation. In response to a question, she said a solicitation is similar to an attempt, but the elements involved are a little different. Number 2100 REPRESENTATIVE MURKOWSKI inquired about the difference between solicitation and inducement. MS. CARPENETI said she doesn't know, because this really is a solicitation statute. She doesn't know what "inducement" means nor what the drafter meant when he decided to name this "criminal sexual inducement" and then define the elements as solicitation. REPRESENTATIVE GREEN asked: If that is the evidence used, why not call it that? MS. CARPENETI agreed but surmised that perhaps the drafter was thinking that because there is solicitation in the statutes already, that would be redundant. She emphasized that she isn't sure and hasn't spoken to the drafter about this in particular. She said she doesn't think Alaska has a definition of inducement, but recalled that Ms. Garrigues had said perhaps it isn't needed because it isn't in the body of the statute anyway. "But I do think we ought to think long and hard before we adopt language that includes 'course of conduct' without a definition, because we've already had problems with it," Ms. Carpeneti cautioned. Number 2162 REPRESENTATIVE GREEN asked whether there is anything in Alaska's criminal statutes for enticing over the Internet or using some electronic method. He suggested perhaps this could be included along with other so-called enticements. MS. CARPENETI answered that she doesn't think there is a specific provision, indicating that is, to her belief, the reason for this bill. However, there is a solicitation statute. Ms. Carpeneti offered a draft amendment, which read as follows [original capitalization and punctuation provided]: *Sec. 1. AS 11.31.110(c) is amended to read: (c) Except as provided in (e) of this section, solicitation [SOLICITATION] IS (1) an unclassified felony if the crime solicited is murder in the first degree; (2) a class A if the crime solicited is an unclassified felony other than murder in the first degree; (3) a class B felony if the crime solicited is a class A felony; (4) a class C felony if the crime solicited is a class B felony: (5) a class A misdemeanor if the crime solicited is a class C felony; (6) a class B misdemeanor if the crime solicited is a class A or class B misdemeanor. *Sec. 2. AS 11.31.110 is amended by adding a new section to read: (e) If the crime solicited is sexual abuse of a minor under AS 11.41.434 - 11.41.440, or unlawful exploitation of a minor under AS 11.41.455, solicitation to commit the crime is the same classification as the crime solicited if the person uses a computer, computer system, computer program, computer network, or any part of a computer system or network in the commission of the offense. MS. CARPENETI explained that the proposed amendment provides that if a person solicits over the Internet and uses a computer, the level of offense is the same as for the completed offense. REPRESENTATIVE GREEN said that makes sense. Number 2233 CHAIRMAN KOTT asked whether Ms. Carpeneti had provided this to the sponsor and whether the sponsor and his staff had had an opportunity to comment. MS. CARPENETI said they had talked a little bit, but had missed each other that morning. CHAIRMAN KOTT commented that it seems to work quite a bit better, if that is the intent of the sponsor. Number 2245 REPRESENTATIVE MURKOWSKI asked what exactly "unlawful exploitation of a minor" is. MS. CARPENETI answered that unlawful exploitation is inducing a child to participate in sexual acts that are filmed or photographed, for example. REPRESENTATIVE MURKOWSKI voiced her understanding that it wouldn't go to the concern here that one would have solicited someone over the Internet. [After Ms. Carpeneti requested clarification, Representative Murkowski looked at the statutes.] Number 2296 MS. GARRIGUES spoke up, saying that adding the definition to unlawful exploitation simply broadens the sorts of behavior that they are looking at, making it a longer list. She stated, "We saying they're inducing somebody to ask them to have sexual relations with you, either penetration or contact - that's defined - or you're inducing them ... or asking them to engage in these other sorts of sexual behaviors." MS. GARRIGUES responded to Ms. Carpeneti's testimony by saying "course of conduct" is a phrase used in the stalking statutes for a number of years, and that was how the stalking statutes were originally defined. She herself isn't aware of a great deal of difficulty with that, and juries seem to be able to deal with it. Ms. Garrigues acknowledged that Ms. Carpeneti, having a statewide view, may have different information. MS. GARRIGUES next addressed Ms. Carpeneti's comments about the ladder of levels of offenses. Mentioning that sexual abuse of a minor in the fourth degree ("SAM 4") is a class A misdemeanor, she pointed out that one definition for that offense is if somebody in a position of authority has sexual relations with somebody who is 17 or 18 years of age; that clearly wouldn't apply here because this bill applies to minors under the age of 16. The other definition of sexual abuse of a minor in the fourth degree is if somebody under 16 years of age engages in relations with somebody younger than 13; that wouldn't apply here either. Ms. Garrigues contended that it wouldn't foul up the hierarchy. MS. GARRIGUES turned attention to the suggestion to equalize the offense and the solicitation of it. She reported that she had discussed it with Representative Brice the previous day, then stated: It was our sense that it just didn't fit right that you would say that a person who attempted or induced a child over the Internet committed a crime that was the same offense as somebody who actually committed that offense, which is what I understand the department is recommending. ... Yes, it's bad that they're doing it over the Internet, but it was not our sense that that somehow made it as serious as the completed offense of sexual abuse. So that was why we rejected the Department of Law's recommendation. Number 2402 MS. CARPENETI responded that Ms. Garrigues is correct that the bill wouldn't apply to sexual abuse of a minor in the fourth degree. However, it would apply to sexual abuse of a minor in the third degree, which is a class C felony now, and for which solicitation of that offense is a class A misdemeanor under current law. It would also apply to the more serious offenses, bringing down the penalty for those. Ms. Carpeneti acknowledged that it is a tough problem. The rationale is that people who "surf" the Internet have a huge number of vulnerable [potential] victims; she believes that is the problem they are all trying to reach, but figuring out the best way to do so is not easy. [REPRESENTATIVE GREEN confirmed with Robert Buttcane, Juvenile Probation Officer, Youth Corrections, Division of Family and Youth Services, Department of Health and Social Services, who was on teleconference, that he had heard the discussion. A copy of Version G was faxed to Mr. Buttcane. When asked about the effects on the levels of offenses, Mr. Buttcane deferred to Ms. Carpeneti, saying it is a legal question.] TAPE 00-18, SIDE B CHAIRMAN KOTT asked whether there were further questions, noting that nobody else was signed up to testify. Number 0059 REPRESENTATIVE ROKEBERG pointed out that AS 11.41.436, sexual abuse of a minor in the second degree, uses the word "induces." He read, in part, from subsection (a): "An offender commits the crime of sexual abuse of a minor in the second degree if ... (4) being 16 years of age or older, the offender aids, induces, causes, or encourages a person who is under 16 years of age to engage in conduct ...." He suggested that the way the bill is, it is kind of redundant. CHAIRMAN KOTT agreed there could be some redundancy. He closed public testimony on HB 354, then announced the intent to hold this over and work with the sponsor on perhaps incorporating the DOL's suggestions. [HB 354 was held over.] HB 163 - DIVISION OF ELECTIONS CHAIRMAN KOTT briefly returned the committee's attention to HOUSE BILL NO. 163, discussed earlier in the meeting. Number 0164 LESIL McGUIRE, Legislative Assistant to Representative Pete Kott and Committee Aide, House Judiciary Standing Committee, Alaska State Legislature, informed members that she had spoken with Pamela Finley, Revisor of Statutes, who had indicated the legislative drafting manual, page 58, specifically states that they must use "chair" or "chairperson" instead of "chairman." When Ms. McGuire had asked where that policy came from, Ms. Finley had said it was adopted and enacted by the legislature in 1982. Ms. Finley had referred Ms. McGuire to AS 1.05.031(c), which states, "The revisor shall edit and revise the laws as they are enacted by the legislature, without changing the meaning of any law, so as to avoid the use of pronouns denoting masculine or feminine gender." REPRESENTATIVE GREEN stated his belief that that has been violated repeatedly. REPRESENTATIVE ROKEBERG pointed out that "chairman" isn't a pronoun, however. [HB 163 was held over.] HB 338 - CRIMES INVOLVING TECHNOLOGY OR I.D. CHAIRMAN KOTT announced that the next item of business would be HOUSE BILL NO. 338, "An Act relating to crimes involving computers, access devices, other technology, and identification documents; relating to the crime of criminal impersonation; relating to crimes committed by the unauthorized access to or use of communications in electronic storage; and providing for an effective date." [The bill was sponsored by the House Rules Committee by request of the Governor.] CHAIRMAN KOTT noted that at one point he had brought this issue up to one of the drafters, who had said it is covered elsewhere. He said he wants to hear why it is a good idea now. He called on Ms. Carpeneti to present the bill on behalf of the Governor. Number 0250 ANNE CARPENETI, Assistant Attorney General, Legal Services Section- Juneau, Criminal Division, Department of Law, came forward to explain HB 338. She noted that when thinking about so-called cybercrime, one only has to listen to the news to realize that how people commit crimes is expanding, if not changing, with new technology. That is what interests the Governor in bringing the statutes up-to-date a bit, especially to address so-called identity theft, which has now reached Alaska. MS. CARPENETI recounted how a Ketchikan woman's credit card and Social Security numbers were obtained over the Internet by a Seattle-area woman, who then opened a bank account, got checks printed, opened accounts at department stores, and actually bought a car with a $6,000 check, at minimum. The Ketchikan woman discovered it six months later when she went to open an account and got a bad credit report; when trying to deal with Seattle-area police, however, she found she wasn't really considered the victim. The problem with Alaska's statutes now is that in terms of criminal impersonation, the person whose identity is taken isn't the victim; rather, the victims are the credit card companies, banks and department stores that are victims of criminal theft. The perpetrator hasn't been charged yet in the case just described, Ms. Carpeneti noted, although the woman had continued buying things with the preprinted checks until the supply ran out. MS. CARPENETI explained that the foregoing is one issue addressed by the bill. It makes criminal impersonation in the first degree a class B felony. The elements of the offense are to take a person's piece of identification, open an account with the intent to defraud, and thereby damage the financial reputation of a person. The person whose identity is used is the victim of the crime, and can proceed to report it to the police. Ms. Carpeneti told members: In terms of prosecution and jurisdiction, our courts have held that if the harm occurs in the state of Alaska, we can prosecute if the person is not here. That's not to say that we're going to catch these people. And the problem of cybercrime is really a global problem. It's not just Alaska. It's not just the United States. It's all over the world. MS. CARPENETI related how at a cybercrime convention a month ago, one eye-opening real-time presentation involved an investigator who identified herself as a 12-year-old girl on the Internet and went into various chatrooms. Ms. Carpeneti said it was appalling what happened, and one can only imagine what would happen to an actual child doing that. The other part of the presentation was the second investigator trying to figure out the whereabouts of the people talking to the allegedly 12-year-old girl; those people, it turned out, were using servers all over the world. MS. CARPENETI emphasized that investigation of people perpetrating these crimes is a lot bigger than HB 338. However, the reason for introducing the bill is so that when they do catch these people, Alaska's statutes are up-to-date and more useful than they currently are. She pointed out that Alaska's statutes are in pretty good shape, but the criminal impersonation provision makes it a class A misdemeanor to defraud people in another's name, and it still doesn't address the issue of who is the victim of the crime. This bill does that, with criminal impersonation in the first degree. Number 0489 MS. CARPENETI cited examples where the bill brings some of Alaska's statutes up-to-date. Where a statute says theft of a credit card, fraudulent use of a credit card or obtaining a credit card by fraudulent means, the bill amends it to say "access device." Therefore, it isn't just the actual card that people carry around, but is the number on the card, the phone number or the personal identification number (PIN), for example, which can be stolen from someone and used to defraud them or someone else. That is one of the cleanups. MS. CARPENETI next brought attention to the "falsifying business records" provision, which makes it illegal to go in without authorization and change business records by adding false information, taking away correct information or failing to put in information where there is a duty to do so. This also adds "electronic records" to the definition of "business records." In terms of deceptive business practices, that crime is really criminal consumer protection offenses, false advertising; it is made a class A misdemeanor in the statutes. Ms. Carpeneti indicated HB 338 changes the penalty to a class C felony if it is done via computer or a computer system or network. People who perpetrate these crimes by computer have a much bigger audience and base of victims, she pointed out. MS. CARPENETI reported that the bill also expands the criminal use of a computer, a class C felony, to include additional behavior such as adding misleading information; right now, it prohibits adding false information. It would also include damaging a person's financial reputation or getting personal information that one isn't authorized to get. Ms. Carpeneti offered to address specific details of that section. She told members the bill also does some minor clarifying amendments. In terms of child pornography, for example, it clarifies the law to provide that if one produces an electronic depiction of a child engaged in these various acts already talked about, that is included in the definition of child pornography. MS. CARPENETI concluded by saying the bill has three parts. It is a little ground breaking with the new criminal impersonation statute, and then it brings the statutes up-to-date regarding the way crimes are committed now. She pointed out that the Court of Appeals had decided recently that the credit card number is included in the fraudulent use of a credit card, but the court didn't expand that to various other access devices such as a bank card for obtaining money or telephone access cards. This bill expands the definitions so that if people steal those and use them to defraud someone, the state can prosecute. Number 0626 CHAIRMAN KOTT asked whether this bill addresses introduction of a computer virus that affects a computer and causes it to crash. MS. CARPENETI affirmed that. CHAIRMAN KOTT asked how the state would follow through on that in terms of the origination of the virus. MS. CARPENETI said that is the problem, as far as catching the person who did it. In addition to having the statutes up-to-date, the state needs investigators who are trained to figure out who did it. She pointed out the fiscal note from the Department of Public Safety (DPS) requesting training and equipment for investigators to learn how to do that. Although a couple of people in the state are good at that now, more are needed. Noting that the DPS could describe what they do, she stated her understanding that their techniques involve taking a whole computer and copying the information, leaving what was originally found on the computer. Untrained people may easily lose evidence, she pointed out. Number 0707 CHAIRMAN KOTT asked whether it would be a class C felony if someone came into his office and wiped out the hard drive. He indicated it would be under Section 11. MS. CARPENETI affirmed that and agreed it is in Section 11. She noted that under paragraph (a)(6) on page 5, for example, that applies even if a person has access to the computer but has exceeded the authorized access and has introduced instructions, programs or other information that disrupts, disables or destroys a computer system. CHAIRMAN KOTT asked whether removing information on the hard drive by using a keystroke, for example, would be included in the phrase "introduces instructions" [page 5, line 17]. MS. CARPENETI affirmed that that is what it was intended to mean. Number 0771 REPRESENTATIVE GREEN referred to page 3, line 30 [obtaining an access device or identification document by fraudulent means, which would be a class A misdemeanor.] He asked whether the level of that crime has been reduced. MS. CARPENETI answered that in a way, yes, because obtaining an access device by fraudulent means was a class C felony under "theory one and two," and under "theory three," it was a class A misdemeanor. It is changed to a class A misdemeanor because theft of a credit card is a class A misdemeanor. As described in the sectional analysis she had provided, the provision for fraudulent use of a credit card is changed so that the penalties conform to theft penalties; if the bill were adopted, it would be a class B felony to use an access device and obtain property in excess of $25,000. So getting the device would be the same as stealing it, and then use of it is changed a little so that the penalties are in line with the theft penalties. Number 0851 REPRESENTATIVE GREEN referred to the top of page 7, expressing uncertainty about what to do if one accidentally picks up a communication through a satellite feed, for example. He asked whether he would be guilty of a violation in that case. MS. CARPENETI said she doesn't believe so, because it would be an accident. "You wouldn't have accessed it in terms of going and getting it without authorization," she added. "It would have just been sent to you." REPRESENTATIVE GREEN asked whether that is understood. MS. CARPENETI said she thinks so. She pointed out that AS 42.20 has specific statutes. She suggested the possibility of looking at it and maybe particularly providing, for this behavior, that accidental receipt isn't included in an offense. REPRESENTATIVE GREEN referred to the phrase "divulge the existence" on page 7, line 5. He asked whether, if a person had picked up information accidentally, that would exonerate another person who then divulged its existence. MS. CARPENETI said she believes so; she offered to check that. She stated that in AS 42.20, for other types of interception of communications, it isn't a crime if it is accidental. Number 0941 REPRESENTATIVE MURKOWSKI pointed out that this dovetails nicely with Representative Brice's bill [HB 354, just heard]. She asked whether Ms. Carpeneti, in drafting this, had looked at going in the direction of that bill as far as "trolling" on the Internet and the necessity to provide certain protections. MS. CARPENETI answered that they had been thinking more of theft- type offenses when drafting this. However, upon viewing it, [HB 354] did seem to fit nicely into crimes committed through technology. REPRESENTATIVE MURKOWSKI suggested this might be a good place to put the idea. Number 1007 REPRESENTATIVE ROKEBERG expressed concern about substituting "access device" for "credit card." He asked whether that has any currency as legal terminology now. MS. CARPENETI explained that when drafting it, she looked at the federal law that has a similar definition, which she believes she followed. She pointed out that the legislature could delete things they don't want in the definition. REPRESENTATIVE ROKEBERG voiced concern about clarity here. As a legislator, he knows to go back to the definitions, but the average person may not know that. In Section 5, for example, where perhaps it is more appropriate, it says "access device or identification document." He noted that both of those terms are defined. He inquired about other terms such as "access identification device." MS. CARPENETI agreed maybe the term "access device" is "New Age." She said she would think about it to see if she can find something more meaningful. REPRESENTATIVE ROKEBERG said PIN numbers are referred to here, but not specifically; he surmised those would be included in identification documents. MS. CARPENETI explained that she considered the PIN as being included in the access device definition. Although a PIN has identification aspects, "document" is really defined as a paper document rather than a number. She asked whether Representative Rokeberg was saying they should state "PIN - personal identification number" so it is absolutely clear. REPRESENTATIVE ROKEBERG said he just had a little trouble with "access device." Number 1170 REPRESENTATIVE ROKEBERG turned attention to page 4, Section 10, deceptive business practices. He expressed his understanding that this adds to the existing statute and raises the penalty if it includes using a computer. MS. CARPENETI affirmed that. REPRESENTATIVE ROKEBERG commented that one uses a computer in almost every business practice anymore. He asked whether there is a particular point here. MS. CARPENETI answered that the point is that deceptive business practices perpetrated over the Internet or via computer have a much bigger audience than a sign in a grocery store misrepresenting the availability of a sale item, for example. REPRESENTATIVE ROKEBERG suggested a cash register could be called a computer, resulting in a class C felony. MS. CARPENETI pointed out that "computer" is defined in Alaska's statutes. REPRESENTATIVE ROKEBERG asked whether a hand-held "Palm Pilot" would be included, for example. MS. CARPENETI indicated she would like to read the statute again. Number 1251 REPRESENTATIVE ROKEBERG drew attention to page 5, subsection (a). He said it seems they are on the edge of disallowing any type of "cookie" to be placed on a person's hard drive or even on a server. He indicated a cookie is a code or file implanted onto a person's hard drive that allows a down-line server to recognize an individual and create data specifically for that person. Cookies are put in without people's knowledge now. He said he is a little uncomfortable about prohibiting things. Number 1395 REPRESENTATIVE MURKOWSKI brought up the issue of telephone scams where technically the access device or number hasn't been stolen or forged but was inadvertently provided because someone was misled. MS. CARPENETI said she believes that would be covered by "obtaining an access device by fraudulent means." Once that number was obtained, if it were used fraudulently to obtain goods or services, the case could be prosecuted as fraudulent use of an access device, depending on the circumstances. Number 1500 REPRESENTATIVE ROKEBERG pointed out that the "cookie" problem is actually in Section 17, which relates to electronic storage. He indicated it seems Section 17 would prohibit the implanting of cookies, which occurs without people's knowledge and which many people may want. MS. CARPENETI asked whether Representative Rokeberg was saying there is a problem with this statute. REPRESENTATIVE ROKEBERG stated that it is right on the edge and there is "a de facto lack of affirmative authorization on the establishment of some of these types of methodologies." He alluded to policy questions arising from the use of "cookies" [because there is a potential for misuse by those who implant them], but indicated he doesn't believe addressing that issue is the intent of the bill. MS. CARPENETI clarified that the intent of this section is to prohibit people from getting into other people's e-mail or voice mail. She offered to talk with Representative Rokeberg about it and to find a "cookie" expert. Number 1735 BLAIR McCUNE, Deputy Director, Public Defender Agency, Department of Administration, testified via teleconference from Anchorage. He said he thinks what Representative Rokeberg was saying about the possible overbreadth of the bill is his own main concern. The way "access device" is defined was troubling to his agency as well. He can understand the need to include more than just the physical card these days. However, it seems the definition should create the bundle of information necessary to do a financial transaction, rather than just individual parts of it. This would make having a Social Security number alone be an "access device," for example. Furthermore, to use a credit card number over the phone, one needs the number plus the expiration date. He restated the need to get at that packet of information, rather than individual items, which may include something as innocuous as one's residence address. MR. McCUNE reported that the other main problem is the relationship between the harm caused and the level of offense. He referred to Section 6, criminal impersonation in the first degree, and making this a class B felony. If someone is fooling around with a computer and doing things they shouldn't be doing, that is bad, he agreed; however, how bad it is depends on the ultimate level of harm, not just that a computer has been used. Mr. McCune said he believes that applies to Section 9 and 10 as well. As pointed out, other business practices can be worse than those using a computer. He emphasized that the relationship to the harm should be looked at carefully and worked out before this goes on. MR. McCUNE advised the committee that his agency has similar concerns with Sections 11, 17 and 18 regarding people who have exceeded their authorized access to obtain personal information. In his own office, for example, people may have stretched the limit of authorized access in getting some file. Making it against the law to do those kinds of things, even though it is a class A misdemeanor, is pretty troubling. Mr. McCune expressed hope that more work can be done on the bill to narrow it down. Number 2045 REPRESENTATIVE ROKEBERG stated his understanding that the Public Defender Agency doesn't get involved in domestic relations cases. MR. McCUNE answered no. The closest they come to that is representing parents in child-in-need-of-aid (CINA) cases, where social workers become involved with the families. Number 2098 DAVID HUDSON, Lieutenant, Division of Alaska State Troopers, Department of Public Safety (DPS), testified via teleconference from Anchorage on behalf of the DPS. He said the department certainly looks forward to this bill's passage. They recognize that enforcement of "computer crimes" and related criminal activity is extremely difficult now. As technology advances and changes, there have been a multitude of incidents in which the DPS has been hampered. Certainly, some definitions in the bill will be advantageous to the DPS, such as the change from "credit cards" to "access devices," as will utilizing numbers and names. LIEUTENANT HUDSON said certainly some things on the Internet today are accessed by using a person's name and Social Security number. From a law enforcement perspective, as Ms. Carpeneti had said, it is very difficult. It is a learning process for the DPS. They must stay on top of this regarding specialties and specialists. Training is continually evolving in society today for determining how to investigate these crimes. Department personnel aren't experts in these areas by any means, he pointed out, and technology is advancing in leaps and bounds. Lieutenant Hudson mentioned proactive formats regarding bills and laws to be able to access some of this information and study it, and hopefully to be able to solve future assistance needs in Alaska. He concluded by restating that the DPS looks forward to this bill moving forward. Number 2226 REPRESENTATIVE ROKEBERG asked how many DPS personnel work in this area now, and with what kinds of support and equipment. LIEUTENANT HUDSON answered that right now they have a white-collar crime section headquartered in Anchorage, with one sergeant and two troopers, to his belief. He indicated their equipment isn't as technologically advanced as what they see youngsters using across the nation, however, and they need to advance on that level. That section's specialties cover a wide range; other than computer crime, they also deal with gaming, fraud and accounting issues, for example. Lieutenant Hudson expressed with certainty that the department isn't as up-to-date as training would allow through various courses conducted by federal and commercial crime investigation units. LIEUTENANT HUDSON reported that the DPS has some other police officers around the state, and a young officer at the University of Alaska Fairbanks security office is doing some very good work and is recognized statewide for some of his knowledge regarding computer-related crimes; furthermore, the Anchorage Police Department has personnel working on this. They try to get those people together as often as possible to learn from one another. He agreed with Ms. Carpeneti that it involves a multitude of things, including trying to teach personnel how to save potential evidence in computers when they come across computers in drug-related conspiracies and other crimes of that nature. "It's a very widespread effort, and we probably don't have as many people as we would like specializing in this area," Lieutenant Hudson concluded. Number 2406 REPRESENTATIVE ROKEBERG asked whether one person in the entire force could be categorized as a "computer geek" who really knows what he is doing. LIEUTENANT HUDSON said the sergeant in the white-collar crime section is probably the best-trained person in this area. However, they recently researched some other training that he or some of his subordinates could attend, to help bring them in line in this direction. Lieutenant Hudson emphasized that technology is advancing so rapidly that the department will probably always be in a catch-up position. REPRESENTATIVE ROKEBERG asked whether the DPS can access the Federal Bureau of Investigation (FBI) for support in the Anchorage area. LIEUTENANT HUDSON affirmed that. [Although not on tape, it was recorded in the log notes.] TAPE 00-19, SIDE A Number 0046 ROBERT BUTTCANE, Juvenile Probation Officer, Youth Corrections, Division of Family and Youth Services, Department of Health and Social Services, testified via teleconference from Anchorage in support of HB 338. He indicated the department views this, in a sense, as a preemptive proposal that would help hold delinquent offenders accountable when they cause harm to others through the use of computers or electronic technologies. He sees it as an opportunity to establish standards for appropriate or inappropriate use of these modern technologies. MR. BUTTCANE spoke strongly in favor of the use of the term "access device," in particular. In delinquency casework, they have had trouble holding accountable young offenders who have taken other people's ATM [automated teller machine] cards, for example, because an ATM card isn't a credit card and has no intrinsic value. In those instances, the department has had to resort to other things that are more indirect, such as theft of lost or mislaid property. Using "access device" in the definition under theft in the third degree, rather than "credit card," would give the department the opportunity to say to a young person who takes somebody else's ATM card that it is stolen property with a value of more than $50 and less than $500, and that it is not okay. MR. BUTTCANE reported that the same holds true when someone steals another's computer system password. Although there hadn't been a number of those cases referred to the department in the delinquency system, there have been discussions with school personnel. In Anchorage, at least, there have been two occasions where students gained access to parts of the school system's computer; in one case, access was to a teacher's personal electronic files, and in other case, access was to an area that would have led to grades, had the student been able to continue. MR. BUTTCANE recognized that some of that behavior is already included under existing statutes, but said expansion of the criminal use of a computer is a preemptive step. Although the bill itself may need some more work, trying to deal with these technologies is difficult. "Having this in place I think will support us in finding our way in what is correct and what is incorrect," he concluded, indicating the desire to work on this bill and move forward on it. Number 0325 CHAIRMAN KOTT, noting that nobody else had signed up to testify, closed public testimony. He asked Representative Rokeberg whether he still has concerns about the "cookie" problem. REPRESENTATIVE ROKEBERG affirmed that. He referred to Mr. McCune's testimony and Section 10, deceptive business practices. He said he believes the department is looking to make a higher standard of criminal offense, turning it into a class C felony, if there is use of the Internet, not a computer. He restated concern about having a cash register be considered a computer, so that if a clerk who had intentionally overcharged somebody for merchandise could be guilty of a class C felony for a $2 crime. He noted that Mr. McCune had echoed his own concerns about Sections 17 and 18. REPRESENTATIVE ROKEBERG also voiced concern about how the language should be drafted to ensure that it doesn't hinder technology. Although the legislature certainly should keep the interests of consumers and individuals in mind foremost, he said they shouldn't interrupt "e-commerce" by passing legislation that has a chilling effect on it. He said he doesn't feel qualified to make a suggestion but isn't comfortable with the direction being taken in some of these sections. However, there is a need for this legislation; if the courts use a strict reading of "credit card," for example, that needs to be fixed as soon as possible. The troopers also need some help and should have a "geek" on hand, which would cost $145,000 out of the $250,000 fiscal note for the bill; he commented that it seems pretty justifiable. Representative Rokeberg stated concern that the bill is omnibus legislation. Number 0599 CHAIRMAN KOTT asked whether there were further comments. He announced the intention of trying to address Representative Rokeberg's concerns and to work with the Public Defender Agency on a couple of the issues brought up. He informed members that HB 338 would be held over. HB 366 - CRIME VICTIMS RIGHTS & DOMESTIC VIOLENCE CHAIRMAN KOTT announced that the next item of business would be HOUSE BILL NO. 366, "An Act relating to the rights of crime victims, the crime of violating a protective order or injunction, mitigating factors in sentencing for an offense, and the return of certain seized property to victims; expanding the scope of the prohibition of compromise based on civil remedy of misdemeanor crimes involving domestic violence; amending Rules 10, 11, 13, 16, and 17, Alaska District Court Rules of Civil Procedure and Rule 9, Alaska Rules of Administration." [The bill had been introduced by the House Rules Committee at the request of the Governor.] Number 0663 ANNE CARPENETI, Assistant Attorney General, Legal Services Section- Juneau, Criminal Division, Department of Law, came forward on behalf of the Governor to present HB 366. She explained that this is a cleanup bill in a sense. It takes care of four areas that have been problematic in terms of victims in Alaska. She said she would describe those briefly and then answer any questions. MS. CARPENETI reported that the first area deals with consequences for violation of a protective injunction in a children's case. Title 47 allows a court to enjoin an adult from having contact with a child if there is established the fact that the adult has sexually or physically abused the child or has put the child in serious danger. Currently there are no consequences other than contempt of court. As in a violation of a protective order in a domestic violence (DV) case, the bill provides that it is a class A misdemeanor to violate a court order that a person not contact a child after a finding that the person has caused sexual or physical abuse to the child. MS. CARPENETI explained that second, the bill adopts a less formal procedure for an owner of property, which was seized by the police from a pawnbroker, to get it back when the pawnbroker wants a hearing because of uncertainty as to who is the owner. Right now, the alleged owner has to file a lawsuit. This bill adopts a procedure by which a person can file a form supported by an affidavit; it also gives the pawnbroker an opportunity to be heard and to file a supporting affidavit. To get property back under these circumstances, therefore, one doesn't have to hire a lawyer and participate in a lawsuit. Number 0780 MS. CARPENETI advised members that third, the bill cleans up something that she believes was overlooked in 1996 when the legislature adopted the domestic violence and victim protection Act. She explained: We tried, in those cases, to go back into the statutes outside Title 11 and outside Title 18, where there are ... family relationships described, and just use the definition of "domestic violence." In this particular case, right now ... our statutes allow for civil compromise of certain misdemeanors, and that is when ... the defendant and the victim come in and say, "We've compromised this case; would you please dismiss it, judge?" And it's not an appropriate thing in domestic violence cases, just because of the power and the manipulation that's a part of that offense. So although ... the current statute does forbid civil compromise in most of our domestic violence relationships, it doesn't include all of them. So we have ... in this bill substituted a crime involving domestic violence for these particular relationships. MS. CARPENETI reported that fourth, the bill adopts a mitigating factor - which has already been recognized by the courts as a nonstatutory mitigator - when a defendant in a criminal case behaves in a way that mitigates the crime's effect on the victim by pleading guilty within 30 days after the defendant is arraigned. She concluded that these are not major changes in law but are cleanups. This adopts it as a statutory mitigator rather than a nonstatutory mitigator, which would require that the case be sent to a three-judge panel for sentencing if the court were to consider that particular factor. Number 0899 CHAIRMAN KOTT asked whether there were any questions and whether anyone else wanted to testify; there was no interest shown. He closed public testimony. REPRESENTATIVE ROKEBERG asked Chairman Kott whether he had contacted any pawnbrokers about this bill. CHAIRMAN KOTT said no and added that he assumes they are okay with it. Number 0940 REPRESENTATIVE GREEN made a motion to move HB 366 out of the committee with individual recommendations and the attached zero fiscal note(s). There being no objection, it was so ordered and HB 366 was moved from the House Judiciary Standing Committee. ADJOURNMENT Number 0989 CHAIRMAN KOTT adjourned the House Judiciary Standing Committee meeting at 3:07 p.m.