Legislature(1999 - 2000)
02/23/2000 01:17 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= 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.
| Document Name | Date/Time | Subjects |
|---|