Legislature(1999 - 2000)

03/03/2000 01:40 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
              SENATE JUDICIARY COMMITTEE                                                                                        
                    March 3, 2000                                                                                               
                      1:40 p.m.                                                                                                 
                                                                                                                                
                                                                                                                                
MEMBERS PRESENT                                                                                                                 
                                                                                                                                
Senator Robin Taylor, Chairman                                                                                                  
Senator Rick Halford, Vice-Chairman                                                                                             
Senator John Torgerson                                                                                                          
                                                                                                                                
MEMBERS ABSENT                                                                                                                  
                                                                                                                                
Senator Dave Donley                                                                                                             
Senator Johnny Ellis                                                                                                            
                                                                                                                                
COMMITTEE CALENDAR                                                                                                              
                                                                                                                                
SENATE BILL NO. 259                                                                                                             
"An Act relating to criminal impersonation."                                                                                    
     -HEARD AND HELD                                                                                                            
                                                                                                                                
PREVIOUS SENATE COMMITTEE ACTION                                                                                                
                                                                                                                                
SB 259 - See Judiciary Committee minutes dated 2-21-00.                                                                         
                                                                                                                                
WITNESS REGISTER                                                                                                                
                                                                                                                                
Ms. Anne Carpeneti                                                                                                              
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, Alaska 99811-0300                                                                                                       
POSITION STATEMENT:      Supports SB 259                                                                                        
                                                                                                                                
Mr. Blair McCune                                                                                                                
Public Defender                                                                                                                 
900 West 5th Avenue, #200                                                                                                       
Anchorage, Alaska 99501                                                                                                         
POSITION STATEMENT:      Testified on SB 259                                                                                    
                                                                                                                                
ACTION NARRATIVE                                                                                                                
                                                                                                                                
TAPE 00-11, SIDE A                                                                                                              
Number 001                                                                                                                      
                                                                                                                                
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to                                                                 
order at 1:40 p.m. and brought up SB 259 as the first order of                                                                  
business.                                                                                                                       
                                                                                                                                
                                                                                                                                
                    SB 259-THEFT OF IDENTITY                                                                                    
                                                                                                                                
SENATOR TORGERSON moved to adopt CSSB 259, version I.  There being                                                              
no objection, the motion carried.                                                                                               
                                                                                                                                
MS. ANNE CARPENETI, representing the Criminal Division of the                                                                   
Department of Law (DOL), stated DOL is in support of CSSB 259.  The                                                             
bill contains many of the provisions DOL feels is important in                                                                  
bringing the  Alaska statutes up to date in terms of theft of                                                                   
identity.  The bill changes "theft of an act of a credit card" to                                                               
"theft of an access devise," allowing theft of numbers as well as                                                               
the theft of a credit card and other devices.  CSSB 259 also                                                                    
changes "fraudulent use of a credit card" to "fraudulent use of an                                                              
access device" for the same reason.  Fraudulent use of an access                                                                
devise is conduct where a person obtains property by fraudulent                                                                 
means using an access devise.  The penalty scheme is changed to                                                                 
reflect that of theft, so that fraudulent use of an access devise                                                               
where property or services are obtained in the amount over $25,000                                                              
is a class B felony.  The bill changes other parts of the statutes,                                                             
in terms of obtaining credit cards by fraudulent means, to include                                                              
obtaining an access devise or identification (ID) document by                                                                   
fraudulent means.  Criminal impersonation in the first degree                                                                   
addresses the situation where an individual is victimized by                                                                    
another person who has obtained a document or number, then opens                                                                
accounts, buys goods, obtains credit cards, opens bank accounts,                                                                
etc., harming the financial reputation of the owner of the                                                                      
identity.  Criminal impersonation in the second degree is thereby                                                               
created which provides that it is a class A misdemeanor.  "Business                                                             
record" is amended to include "recordings"  and expands the crime                                                               
of criminal use of the computer.  This involves  hacking into a                                                                 
computer or exceeding authorization to use a computer, acquiring                                                                
personal information and adding it to the system so it will either                                                              
harm or enhance a persons record.                                                                                               
                                                                                                                                
Number 362                                                                                                                      
                                                                                                                                
CHAIRMAN TAYLOR asked for clarification of the word "aural" which                                                               
is in the title of the bill and throughout the document.                                                                        
                                                                                                                                
MS. CARPENETI responded it was added by legislative affairs, the                                                                
drafter was probably trying to put the statute in conformity with                                                               
other similar statutes.  She said she would research the question                                                               
and provide the committee with an answer.                                                                                       
                                                                                                                                
SENATOR TORGERSON asked why "credit card" is being removed from the                                                             
bill and is replaced with "access devise."                                                                                      
                                                                                                                                
MS. CARPENETI answered the term "access devise" gives a broader                                                                 
definition.                                                                                                                     
                                                                                                                                
MR. BLAIR MCCUNE, Deputy Director for the Public Defender Agency,                                                               
stated he is concerned about the breadth of the bill.  A few                                                                    
principals should be kept in mind when looking at something like                                                                
this.  First of all, normal commercial activity or computer                                                                     
practices over the Internet should not be outlawed.  Second,                                                                    
because these are property crimes the penalty of the offense should                                                             
be related to the actual harm caused.  Financial and property                                                                   
crimes should to linked to a value for the type of theft or loss in                                                             
monetary terms.  Third, mental state should be carefully worded so                                                              
that things done by mistake or for curiosity or just poking around                                                              
are not made illegal.  The law should be for things done knowingly                                                              
and with intent to defraud.                                                                                                     
                                                                                                                                
MR. MCCUNE said there are no problems with sections 1 and 2.  In                                                                
section 3 the wording "access devise" gives the public defender                                                                 
some concern.  The definition on page 6 includes any type of ID                                                                 
number, such as a drivers license, social security number, bank                                                                 
account number, or credit card number that is capable of being                                                                  
used, alone or in conjunction with another access devise.  This is                                                              
getting at data that might be collected in the course of normal                                                                 
commercial activity and could possibly be considered an access                                                                  
devise.                                                                                                                         
                                                                                                                                
MR. MCCUNE is not too concerned with the theft statute because it                                                               
has "intent to permanently deprive another person of property."                                                                 
                                                                                                                                
Section 4, subsection (b),  does a good job of linking the harm to                                                              
some kind of value or property that a person loses--this is key,                                                                
and he hopes it will be a guiding principal.                                                                                    
                                                                                                                                
Mr. McCune said subsection 5 has an over breadth problem because                                                                
the definition of "access devise" is too broad.  An access devise                                                               
can be a drivers license number, social security number or                                                                      
something along these lines instead of a credit card.                                                                           
                                                                                                                                
MR. MCCUNE is not concerned with subsections 2 and 3 because they                                                               
say "with intent to defraud."                                                                                                   
                                                                                                                                
Section 6, subsection 2, deals with criminal impersonation in the                                                               
first degree--the damage does not quantify for the crime.                                                                       
                                                                                                                                
Section 10 makes deceptive business practices a class C felony if                                                               
a computer is used.  Computers are used so much in business                                                                     
practice that it might be better to link the crime with either                                                                  
"value" or "harm caused," rather than the fact that a computer  has                                                             
been used.  It should not be a class C felony if the value lost is                                                              
$50.00.                                                                                                                         
                                                                                                                                
Section 11 is a very complicated and broad statute.  People tend to                                                             
exceed access just out of curiosity, this should be taken into                                                                  
consideration.                                                                                                                  
                                                                                                                                
The public defender would like "intent to defraud" or "intent to                                                                
commit a crime" used more in this bill.                                                                                         
                                                                                                                                
Number 983                                                                                                                      
                                                                                                                                
CHAIRMAN TAYLOR asked if section 11, subsection (a), "A person                                                                  
commits the offense of criminal use of a computer if, having no                                                                 
right to do so or any reasonable ground to believe the person has                                                               
such a right, the person knowingly accesses, [OR] causes to be                                                                  
accessed, or exceeds the person's authorized access to a computer,                                                              
computer system, computer program, computer network, or any part of                                                             
a computer system or network, and, as a result of or in the course                                                              
of that access," will give the law some leverage when dealing  with                                                             
the type of crime that is commonly referred to as the "APSIN                                                                    
scandal?"                                                                                                                       
                                                                                                                                
MR. MCCUNE responded he does not know, but it might.                                                                            
                                                                                                                                
Number 1233                                                                                                                     
                                                                                                                                
CHAIRMAN TAYLOR commented that under existing state law this                                                                    
offense is a class A misdemeanor and under federal law it is a                                                                  
felony.                                                                                                                         
                                                                                                                                
MR. MCCUNE stated that almost every phrase in the federal law                                                                   
begins with "knowingly and with intent to defraud," and ends with                                                               
"obtains of anything of value aggregating $1,000 or more during                                                                 
that period," giving the law a tight mental state and value.                                                                    
                                                                                                                                
MR. MCCUNE remarked that Washington, being the technological                                                                    
capitol, has a statute on computer trespass in the first degree                                                                 
which is simple, direct and easy to understand.  A class C felony                                                               
is created if a person is in a computer without access and                                                                      
intentionally gains access to the system, and then intentionally                                                                
commits another crime.  In Alaska this is a class A misdemeanor.                                                                
                                                                                                                                
MR. MCCUNE noted the federal law has a similar definition of access                                                             
devise but it is directed more toward financial accounts, than                                                                  
social security numbers.                                                                                                        
                                                                                                                                
CHAIRMAN TAYLOR asked where Mr. McCune would like the intent                                                                    
language changed.                                                                                                               
                                                                                                                                
MR. MCCUNE answered that in the fraudulent use of an access devise                                                              
"intent to defraud" should be added and a value should also be                                                                  
added.  Section 5 is a concern, and "knowingly and intent to                                                                    
defraud"  needs to be added to section 1.  Section 6 has a lack of                                                              
value related to the harm, and a class B felony should not be                                                                   
considered if there is a quick fix for the damage done.                                                                         
                                                                                                                                
Number 1355                                                                                                                     
                                                                                                                                
MS. ANNE CARPENETI stated she is concerned about putting "culpable                                                              
mental state," and "knowingly with intent to defraud," in one act.                                                              
Two culpable mental states should not be in one act because one                                                                 
includes the other.  Culpable mental state is very difficult to                                                                 
prove because "knowing conduct," "criminal negligent conduct" and                                                               
"reckless conduct" have to be proven.                                                                                           
                                                                                                                                
MS. CARPENETI said the reason a dollar amount was not added to                                                                  
section 6 is because it is hard to quantify a financial reputation.                                                             
The person whose identity is stolen is not now considered the                                                                   
victim, the vendor is the victim.  Loss of identity is a continuing                                                             
offense and a number cannot be put on that damage.  The state will                                                              
have to prove that the person has a stolen identification document                                                              
or access devise for the purpose of opening an account, obtaining                                                               
an access devise, or obtaining property and services, and that the                                                              
financial reputation of the other person has been damaged.                                                                      
                                                                                                                                
Number 1497                                                                                                                     
                                                                                                                                
SENATOR HALFORD asked if a class B felony will be created if a                                                                  
person obtains a false ID, buys alcohol and leaves without paying                                                               
the bill.                                                                                                                       
                                                                                                                                
MS. CARPENETI responded she is not sure, but it is not the intent                                                               
of SB 259 to make this type of crime a class B felony.                                                                          
                                                                                                                                
SENATOR HALFORD asked if there is a provision for changing the                                                                  
victim's social security number.                                                                                                
                                                                                                                                
Number 1892                                                                                                                     
                                                                                                                                
MR. MCCUNE stated that the term "need knowingly" would be needed                                                                
with "intent to defraud" under Alaska law.  The language "with                                                                  
intent to defraud" covers mental state, making it intentional                                                                   
fraud.                                                                                                                          
                                                                                                                                
SENATOR HALFORD said section 11 adds "or misleading" to the                                                                     
existing statutory language without a definition of "or                                                                         
misleading."  Because this is subjective language, it should either                                                             
be defined or left out.  SENATOR HALFORD would also like to know if                                                             
a crime is created if something has been encrypted, without                                                                     
authorization, in a computer system a person has access to.                                                                     
                                                                                                                                
MS. CARPENETI stated this will only apply if a person is encrypting                                                             
data they have no authorization to encrypt.  It has to be proven                                                                
that a person has no right to do so or have any reason to believe                                                               
they have the right to get access to this information and encrypt                                                               
or decrypt the information.                                                                                                     
                                                                                                                                
Number 2102                                                                                                                     
                                                                                                                                
SENATOR TORGERSON asked if a person can be tried with this law if                                                               
they enhance information for personal gain.                                                                                     
                                                                                                                                
MS. CARPENETI answered that in order for it to be covered under                                                                 
CSSB 259, a person would have to go into their bank account data                                                                
and enhance their record--actually going in and changing the bank                                                               
computer.                                                                                                                       
                                                                                                                                
SENATOR HALFORD stated that the historical interpretation of a                                                                  
social security number has been destroyed and if this is the core                                                               
number that created the problem for theft of identity, something                                                                
needs to be done to fix the problem.                                                                                            
                                                                                                                                
SENATOR TORGERSON stated this is public information that is being                                                               
misused and he asked if there can be a misinterpretation without                                                                
there being a misuse.                                                                                                           
                                                                                                                                
CHAIRMAN TAYLOR stated he does not think a social security number                                                               
is public information.                                                                                                          
                                                                                                                                
There being not further business to come before the committee,                                                                  
CHAIRMAN TAYLOR adjourned the meeting at 2:29 p.m.                                                                              
                                                                                                                                
                                                                                                                                

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