Legislature(2001 - 2002)
04/26/2001 01:53 PM House FIN
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
HOUSE BILL NO. 125
An Act relating to unlawful and indecent viewing and
photography and to civil damages and penalties for that
viewing and photography.
providing for an effective date.
DENISE HENDERSON, STAFF, REPRESENTATIVE PETE KOTT, stated
that HB 125 would amend Alaska Statute 09.68 by adding a
section that creates protection for victims of improper
viewing and/or photography. The bill establishes the
parameters for what is considered to be improper viewing or
photography.
Ms. Henderson added that the bill would prohibit the
transmission of pictures or video images over the Internet
without the consent of the subject or the parents, if the
subject was a minor. The bill would also prohibit any
monetary gain to be had by the perpetrators of crimes as
well as imposing stiff monetary fines.
Ms. Henderson summarized that HB 125 would ban a practice
known simply as "up-skirting or down-blousing". The
Internet has made the practice more common with web sites
posting images and buying pictures from high tech peeping
toms and telling users where to buy hidden cameras. Those
web sites basically promote the practice as well as
encourage it. The bill is designed to protect the privacy
of all the residents in the State of Alaska.
Vice-Chair Bunde asked if the legislation resulted from an
extension of an existing problem in the Mat-Su Valley. Ms.
Henderson acknowledged that it had. There were no previous
civil statutes which allowed people to file for civil
liabilities in these cases.
Representative Davies referenced Page 2, Line 5, and asked
what "viewed and photographed" meant. Ms. Henderson
explained that a problem exists with using photographs and
then posting them on the Internet.
Representative Davies asked if the fine would be $5,000 per
day for each day the photograph was up. Ms. Henderson
replied that was correct.
Representative Davies reiterated concerns with language on
Page 2, Line 5. He requested more information regarding the
class of penalty it would be.
JERRY LUCKHAUPT, LEGISLATIVE LEGAL, LEGISLATIVE AFFAIRS
AGENCY, explained that the language refers to a part of a
civil penalty. It stipulates that each day that a person is
viewed and photographed, there would be a separate $5,000
penalty. Earlier in that provision, the language provides
for a $100 dollar accounting for each photograph made.
There are different alternatives provided and the
legislation provides for a separate scheme for each day that
the viewing takes place. A Class A misdemeanor provides for
a $5,000 fine. In Section 2, a new crime, improper viewing,
is made which would be a Class A misdemeanor. The maximum
penalty for that would be one year in jail and a $5,000
dollar fine.
Representative Davies pointed out that the fine would be
assessed each day that the person was viewed or photographed
improperly. He asked what the phrase "photograph was
viewed" would encompass. Mr. Luckhaupt explained that
language was drafted in order to provide the concept of the
fine for the viewing or photographing.
Representative Davies reiterated his concern with the Class
A misdemeanor and the associated penalty. He suggested that
a cap be placed on the amount. A Class C felony typically
has a $50,000 dollar fine which he thought was too much.
Representative Davies MOVED to ADOPT an amendment to Page 2,
Lines 4 & 5, including an "up to" amount perhaps in the
neighborhood of $15,000 dollars. Co-Chair Williams OBJECTED
for discussion.
Representative Whitaker asked why the penalty should be
reduced.
Representative Davies WITHDREW his MOTION.
Representative Croft commented on language indicated on Page
2, Lines 8-12, regarding the concealed camera. He stated
that under the bill, it would be a crime for knowingly and
"surreptitiously" viewing inside a house. Mr. Luckhaupt
stated that that the surreptitiously viewing would be a
viewing that is unnatural and suspicious. Discussion
followed on the meaning of "surreptitiously". Mr. Luckhaupt
noted that the dictionary definition of surreptitious
viewing would be something like hiding from behind a bush
peering through the blinds. Representative Croft questioned
if the person in the interior of the house would determine
if it was surreptitious or not.
Vice-Chair Bunde referenced language on Page 2, Lines 3-4,
and asked about the civil penalty. He questioned if the
case could be taken on contingency. Mr. Luckhaupt advised
that the penalty was provided under the civil scheme in the
first section of the bill. The first penalty would be the
person's actual damages, Page 1, Line 10; there would be a
penalty placed on the person for every picture they produced
from the illegal viewing and there would be a penalty placed
on them for $5,000 for each day that they do the action. He
stressed that the penalty was designed in order to encourage
people not to partake in the conduct.
Vice-Chair Bunde noted that the upper limit of the fine
would be determined in Court. Mr. Luckhaupt stated that the
victim of the offense, the plaintiff, would have to prove
how many days that person had been illegally viewed or
photographed.
Vice-Chair Bunde asked if the fine would be mandatory. Mr.
Luckhaupt advised that it would not be a typical criminal
situation. The Court would impose the fine and penalties.
He emphasized that it is important to provide some incentive
that the person not engage in the illegal videotaping.
Representative Davies commented that most people do not know
the law even though they have a general moral sense that the
behavior is improper. He argued that ending up with a $3
million dollar fine could create a very bad situation. He
urged that a limit be placed on the crime. He emphasized
that the legislation provides for no limit.
Co-Chair Williams questioned the limit for civil actions.
Mr. Luck advised that there is not a limit. In such a case,
other provisions and damages suffered by the person could be
unlimited.
Ms. Henderson noted that the discussion was being focused on
the monetary amount indicated in the bill. She insisted
that there is no monetary cap which can be placed on a
person's privacy. Representative Davies agreed, however,
pointed out that there is no way to determine the value of
"privacy"; the way that is usually used to determine it is
by setting a class of penalty. He stated that the question
is: "Does this crime equal ten felonies?" He stressed that
there must be some kind of rational used in determining the
penalty scheme.
Vice-Chair Bunde asked if the sponsor would consider
compromise in that language.
Representative Lancaster agreed that a person could not put
a value on their privacy. He believed that society needs a
message that the fine would be unlimited. Representative
Davies argued that there should be a rational between the
penalty scale and the level of the crime.
Ms. Henderson stated that the sponsor would consider
amending the language. Vice-Chair Bunde MOVED a conceptual
amendment to Page 2, Line 4, inserting "up to" before
"$5,000 a day". Representative Lancaster OBJECTED.
A roll call vote was taken on the motion.
IN FAVOR: Davies, Harris, Hudson, Moses, Whitaker,
Bunde
OPPOSED: Foster, Lancaster
Representative Mulder and Representative Croft were not
present for the vote.
The MOTION PASSED (7-2).
Representative Whitaker questioned who could be found liable
under the language in the bill. Mr. Luckhaupt replied that
Section 1 of the bill provides for civil penalties; Section
2 of the bill provides for the criminal penalty for improper
viewing of photography and Section 3 of the bill amends the
current law for indecent viewing of photography. Section 3
is the portion of the bill addressing the viewing of private
exposure of the genitals, anus or female breasts of another
person.
Representative Whitaker questioned how much the legislation
addressed the person viewing the photographs on the
Internet. Mr. Luckhaupt explained that the person that does
the viewing, would not be the person prosecuted.
Representative Whitaker inquired the place in the
legislation, which precludes a person sitting in his or her
own home and viewing. Mr. Luckhaupt referenced language in
Sections 2 & 3, Page 2, Line 7.
Representative Whitaker voiced concern that in that
language, the person would be held liable for improperly
viewing if that person was knowingly viewing. He asked if
"surreptitiously" was the key word. Mr. Luck advised that
when you are sitting in your own home, you are not viewing a
person in his or her own home. Someone that is viewing the
person in his or her own home, is the person committing the
offense.
Representative Whitaker asked if the person viewing a web
cam in the privacy of his or her own home would be
precluded. They would be a third party to the production of
that site. Mr. Luckhaupt replied that a web cam was a
closed circuit. Representative Whitaker stated that he
wanted to guarantee that a person watching the web would not
be subject to prosecution. Mr. Luckhaupt noted that he did
not perceive that person would be guilty of viewing.
Representative Whitaker asked if a person living in
Anchorage and viewing a picture produced in Southeast would
be subject to prosecution. Mr. Luckhaupt reiterated that he
did not believe that they would be subject to prosecution.
Representative Whitaker agreed that it is important to
establish the definition of "surreptitiously" viewed. Mr.
Luckhaupt suggested that the Committee could draft a Letter
of Intent clarifying the meaning of that section and that
viewing secondary exposure of photographs or videotape would
not be subject to prosecution.
Representative Hudson asked what portion of the bill would
preclude someone viewing through the Internet, be held
harmless. He understood that the intent of the bill was to
address "peeping toms".
Co-Chair Williams stated that HB 125 would be HELD in
Committee for further consideration.
TAPE HFC 01 - 97, Side B
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