02/27/2024 03:00 PM House STATE AFFAIRS

        HB 316-EMERGENCY CELL PHONE LOCATION DISCLOSURE                                                                     
                                                                                                                                
3:13:14 PM                                                                                                                    
                                                                                                                                
CHAIR SHAW  announced that the  final order of business  would be                                                               
HOUSE BILL NO. 316, "An  Act relating to law enforcement requests                                                               
for wireless telephone location information in emergencies."                                                                    
                                                                                                                                
3:13:36 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  WRIGHT  moved  to adopt  the  proposed  committee                                                               
substitute (CS)  for HB 316,  Version 33LS1235\B,  Walsh, 2/20/24                                                               
as a working document.                                                                                                          
                                                                                                                                
3:13:53 PM                                                                                                                    
                                                                                                                                
CHAIR SHAW objected for the purpose of discussion.                                                                              
                                                                                                                                
3:13:59 PM                                                                                                                    
                                                                                                                                
The committee took a brief at-ease.                                                                                             
                                                                                                                                
3:14:30 PM                                                                                                                    
                                                                                                                                
BUDDY  WHITT, Staff,  Representative Laddie  Shaw, discussed  two                                                               
changes that would  be made by the proposed CS  to HB316, Version                                                               
B.   The first change  would omit  lines 10-11 from  the original                                                               
bill version, which had language  concerning 911 emergency calls.                                                               
He explained  the subject  of the  bill involves  tracking mobile                                                               
phones.   Including 911 calls  in the  bill does not  enhance the                                                               
policy and  could potentially dilute  the policy due to  its over                                                               
specificity.    The  bill  sponsor   sought  to  include  broader                                                               
language.  The second change would include the addition of an                                                                   
immediate effective date should the bill become law.                                                                            
                                                                                                                                
3:16:07 PM                                                                                                                    
                                                                                                                                
CHAIR SHAW removed his objection.  There being no further                                                                       
objection, Version B was before the committee as a working                                                                      
document.                                                                                                                       
                                                                                                                                
3:16:36 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE JOHNSON as prime sponsor of HB 316, paraphrased                                                                  
from his sponsor statement, which read as follows [included in                                                                  
the committee packet]:                                                                                                          
                                                                                                                                
     HB316,  known  as the  Kelsey  Smith  Act, already  has                                                                    
     passed in 30 states, and  currently is pending in three                                                                    
     others,  as   well  as  at   the  federal   level.  The                                                                    
     legislation  is  needed  in   Alaska  to  help  protect                                                                    
     victims  in emergency  situations. HB316  would require                                                                    
     that  telecommunications companies  immediately respond                                                                    
     to  law enforcement  requests for  location information                                                                    
     of  victims who  are in  jeopardy of  death or  serious                                                                    
     physical harm.                                                                                                             
                                                                                                                                
     On June  2, 2007,  Kelsey Smith  was abducted  in broad                                                                    
     daylight  from  an  Overland  Park,  Kansas  department                                                                    
     store,  then  raped  and murdered.  The  abduction  was                                                                    
     captured  on  the   store's  security  camera,  leaving                                                                    
     little doubt of the  emergency nature of the situation.                                                                    
     Four days after she  disappeared, authorities were able                                                                    
     to  locate Kelsey's  body after  her wireless  provider                                                                    
     finally released call information from her cell phone.                                                                     
                                                                                                                                
     The  tragic abduction  and murder  of  Kelsey Smith  is                                                                    
     heartbreaking and  should never happen again.  In life-                                                                    
     or-death  situations  it  is  paramount  that  our  law                                                                    
     enforcement   agencies  have   access  to   life-saving                                                                    
     resources;  and  the  fear of  legal  liability  should                                                                    
     never  stand in  the way  of rescuing  a victim  from a                                                                    
     life-threatening situation.                                                                                                
                                                                                                                                
     The   Kelsey  Smith   Act   makes   certain  that   law                                                                    
     enforcement officials,  not a  phone company,  are able                                                                    
     to  determine  if  a  loved  one  is  in  an  emergency                                                                    
     situation. The  privacy of every Alaskan  is important,                                                                    
     and  this legislation  strikes the  appropriate balance                                                                    
     between  the   ability  of  law  enforcement   to  help                                                                    
     individuals in  grave danger,  while also  ensuring the                                                                    
     proper checks  are in place to  guard against potential                                                                    
     abuse or government overreach.                                                                                             
                                                                                                                                
     HB316  will   ensure  that  law  enforcement   has  the                                                                    
     resources  they  need  from  cell  phone  providers  to                                                                    
     locate missing  or abducted Alaskans.  If one  life can                                                                    
     be saved, or  one child returned safely  to their loved                                                                    
     ones, then this act will have served Alaskans well.                                                                        
                                                                                                                                
     The  legislation does  not require  additional funding.                                                                    
     In fact, it should save money.                                                                                             
                                                                                                                                
     To learn  more about Kelsey's  story and the  effort to                                                                    
     enact the  Kelsey Smith Act across  the country, please                                                                    
     visit: https://kelseysarmy.org/#ks-act                                                                                     
                                                                                                                                
3:19:07 PM                                                                                                                    
                                                                                                                                
GREG   SMITH,  Executive   Director,  Kelsey   Smith  Foundation,                                                               
submitted written  testimony about HB  316 [copy included  in the                                                               
committee  packet].    He  highlighted   his  experience  in  law                                                               
enforcement and government affairs.   He said that 30 states have                                                               
passed legislation regarding  the Kelsey Smith Act.   He promised                                                               
that this  bill will save lives  and not cost anything.   He said                                                               
this legislation is "too important  to ignore," and recounted the                                                               
kidnapping story  of his daughter,  Kelsey Smith, in 2007.   Over                                                               
the course  of four days,  Mr. Smith worked with  law enforcement                                                               
agencies  to  call  wireless  providers   and  to  determine  the                                                               
location  of  her phone.    He  said  3  days passed  before  the                                                               
information was  released about the  location of her  cell phone,                                                               
but it was too late.                                                                                                            
                                                                                                                                
MR. SMITH  explained that HB  316 would allow law  enforcement to                                                               
access wireless device  location when a person is  believed to be                                                               
at  risk of  serious bodily  harm or  death.   He explained  that                                                               
photos, texts, and calls would not  be accessed.  The location of                                                               
the device  is the  only information that  would be  disclosed so                                                               
that law  enforcement has a  starting point in  investigations of                                                               
emergent situations.                                                                                                            
                                                                                                                                
MR. SMITH  added that  opponents to  the bill  may argue  for the                                                               
Fourth  Amendment.     He   described  operating   under  exigent                                                               
circumstances.  He alluded to a  case where the court opined that                                                               
to  protect  and  preserve  life   or  avoid  serious  injury  is                                                               
justification for what would otherwise  be illegal in the absence                                                               
of an  emergency.  He  described a common misconception  of using                                                               
this  bill to  "get  around  a warrant."    He  assured that  the                                                               
purpose of  the bill is  to aid  in finding potential  victims in                                                               
need of  medical aid or rescue.   He noted that  technology often                                                               
moves faster  than the law and  court cases provide case  law for                                                               
law  enforcement to  operate under  until state  legislatures can                                                               
create laws.                                                                                                                    
                                                                                                                                
3:24:53 PM                                                                                                                    
                                                                                                                                
MR.  SMITH noted  a  case  that is  currently  guiding case  law,                                                               
United States v.  Gilliam, which involved a  kidnapping which led                                                               
to  sex  trafficking.   In  the  case,  the cell  phone  provider                                                               
transferred info  to the  police and made  it possible  to locate                                                               
the  victim and  the sex  trafficker who  was later  convicted of                                                               
several felonies.   This case referenced federal  law including a                                                               
"voluntary disclosure of customer communications records."                                                                      
                                                                                                                                
MR.  SMITH  noted  a  provision where  a  wireless  provider  can                                                               
disclose information to  a government entity if  the provider, in                                                               
good faith, believes that an  emergency involving danger of death                                                               
or  serious physical  injury to  any  person requires  disclosure                                                               
without  delay of  information relating  to the  emergency.   The                                                               
only  problem  with  this  law  is  that  the  wireless  provider                                                               
customer  service  agents   become  responsible  for  determining                                                               
emergent status  and may  lack adequate  training.   He described                                                               
his personal  experience working  with wireless  customer service                                                               
and an  agent who refused to  release the location of  a victim's                                                               
cell phone because they lacked  adequate training to determine if                                                               
the situation was an exigent circumstance.                                                                                      
                                                                                                                                
MR. SMITH  explained that HB  316 would take  the decision-making                                                               
process  away  from wireless  providers  and  give power  to  law                                                               
enforcement  for exigent  circumstances.   He  referenced a  U.S.                                                               
Supreme Court  case, United States  v. Carpenter,  which involved                                                               
tracking a  bank robber's phone for  127 days.  The  U.S. Supreme                                                               
Court agreed  that phone tracking  is an investigation  tool that                                                               
warrants  an  exception to  the  Fourth  Amendment if  there  are                                                               
exigent circumstances.                                                                                                          
                                                                                                                                
3:29:46 PM                                                                                                                    
                                                                                                                                
MR. SMITH  referenced United States  v. Hammon which  involved an                                                               
armed robber  whose phone was  tracked to stop a  dangerous armed                                                               
robbery spree.   The U.S.  Supreme Court denied hearing  the case                                                               
and said  that United States  v. Carpenter set the  precedent for                                                               
the use of cell phone  tracking under exigent circumstances.  Mr.                                                               
Smith said  HB 316  would codify  the previously  mentioned court                                                               
decisions.                                                                                                                      
                                                                                                                                
MR. SMITH explained  that under federal law,  cell phone tracking                                                               
information  can be  released to  a government  entity, which  is                                                               
defined as  "a department or agency  of the United States  or any                                                               
state   or  political   subdivision  thereof."     The   proposed                                                               
legislation would make cell  phone tracking information available                                                               
to law  enforcement and  no other  entity.   It would  provide an                                                               
immunity clause  for the cell  phone providers so that  when they                                                               
cooperate  with law  enforcement, they  are protected  from legal                                                               
action.    He  mentioned  that   lobbying  groups  from  wireless                                                               
companies have  spoken out in  favor of similar bills  across the                                                               
country  and at  the federal  level.   He mentioned  that HB  316                                                               
doesn't need to  be titled the "Kelsey Smith Act."   He described                                                               
training he  provides to law  enforcement about  using technology                                                               
in  exigent   circumstances.    He  remarked   emotionally  about                                                               
testimonies he has heard from  people whose loved ones were saved                                                               
because of the Kelsey Smith Act.                                                                                                
                                                                                                                                
3:34:21 PM                                                                                                                    
                                                                                                                                
CHAIR  SHAW thanked  Mr.  Smith for  his  powerful testimony  and                                                               
story.   He thanked  Representative C.  Johnson for  bringing the                                                               
bill forward.                                                                                                                   
                                                                                                                                
3:34:32 PM                                                                                                                    
                                                                                                                                
The committee took a brief at-ease.                                                                                             
                                                                                                                                
3:35:52 PM                                                                                                                    
                                                                                                                                
CHAIR SHAW asked for questions from the committee.                                                                              
                                                                                                                                
REPRESENTATIVE  CARPENTER  asked   if  the  proposed  legislation                                                               
includes satellite phones and other geolocation devices.                                                                        
                                                                                                                                
3:36:44 PM                                                                                                                    
                                                                                                                                
LEON MORGAN, Alaska Criminal Intelligence  Manager, Office of the                                                               
Commissioner, affirmed  that HB  316 [Version  B] would  apply to                                                               
satellite phones and inReach devices.   He noted that geolocation                                                               
is known  to service  providers of  satellite phones  and similar                                                               
devices and  providers have existing programs  to relay necessary                                                               
location information to law enforcement.                                                                                        
                                                                                                                                
3:37:27 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE CARPENTER  asked about  the definition  of exigent                                                               
circumstances and  whether is it  broad enough to cover  amber or                                                               
silver alerts.                                                                                                                  
                                                                                                                                
MR.  MORGAN affirmed  that the  term is  sufficient and  includes                                                               
amber and silver alerts.                                                                                                        
                                                                                                                                
3:37:57 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE CARRICK asked whether  location tracking for other                                                               
devices such as tablets and  smart watches would be covered under                                                               
HB 316 [Version B].                                                                                                             
                                                                                                                                
MR. MORGAN affirmed that most  devices that submit location do so                                                               
on a  cellular network and are  able to provide location  data to                                                               
law enforcement under exigent circumstances.                                                                                    
                                                                                                                                
3:39:12 PM                                                                                                                    
                                                                                                                                
CHAIR SHAW announced that HB 316 [Version B] was held over.