Legislature(2009 - 2010)BELTZ 105 (TSBldg)
03/31/2010 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing Legislative Ethics Committee | |
| SJR28 | |
| HB101 | |
| SB190 | |
| HB108 | |
| SB249 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | SB 249 | TELECONFERENCED | |
| + | HB 108 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 101 | TELECONFERENCED | |
| += | SB 190 | TELECONFERENCED | |
| += | SJR 28 | TELECONFERENCED | |
SB 190-BIOMETRIC INFORMATION FOR ID
CHAIR FRENCH announced the consideration of SB 190. [CSSB
190(STA) was before the committee.]
1:49:58 PM
SENATOR WIELECHOWSKI said the purpose of SB 190 is to update a
law that protects the privacy rights of citizens from emerging
new technologies. In 2004 the Legislature unanimously passed a
bill by Senator Donny Olson that outlaws the collection,
analysis or storage of a law-abiding citizen's DNA without their
written consent. SB 190 extends that protection to other forms
of biometric information because emerging technology for
individual recognition threatens privacy rights. The Alaska
Constitution has the strongest provision in the nation regarding
individual privacy rights and this bill meshes very well with
that constitutional provision, he said.
The Legislature recently rejected adopting the federal Real ID
Act because it would give the federal government the ability to
track people through radio frequency ID chips in their driver's
license. But now people can be tracked through facial
recognition or retinal scan technologies, which greatly impacts
individual privacy rights, he said.
SENATOR WIELECHOWSKI reported that his office was approached by
a citizen in 2008 who was refused admittance to a state CPA exam
after he offered his driver's license, passport, and Social
Security card as identification, but he refused to submit to
fingerprinting. He inspired the bill.
1:52:42 PM
CHAIR FRENCH related that he heard the bill in a previous
committee and has no questions.
GEORGE ASCOTT, Staff to Senator Wielechowski, said the packet
contains an explanation of the changes that occurred in version
T.
SENATOR COGHILL observed that the definitions for "biometric
information" on page 3, lines 6-8, are quite broad and seem to
be terms of art. He asked if the terms had been litigated and if
facial recognition is different than a photograph.
MR. ASCOTT said a photograph is a picture whereas a facial
recognition system has a camera, software to capture information
beyond the image, and a computer system to classify the elements
and differentiate between faces.
1:55:31 PM
SENATOR COGHILL asked about the circumstance of a private
investigator who is trying to prove that somebody was at a crime
scene and in the process collects some of this biometric
information.
MR. ASCOTT said the Department of Law has similar concerns,
specifically with regard to fingerprints because they sometimes
rely on fingerprints that a private investigator may have
collected. He clarified that thwarting common practices is not
the intent.
SENATOR COGHILL said he shares the sponsor's concern about
protecting personal identity, but he doesn't want to
inadvertently open the door for civil action for doing things
that are common practice.
1:58:10 PM
RICK SVOBODNY, Deputy Attorney General, Department of Law (DOL),
explained that in 2004 when Title 18 was amended to deal with
DNA, there was concern that much more information could be
obtained from a DNA sample than simple identification. Science
was and is moving very fast and that's why that legislation was
limited to DNA. Since then biometric information like voice
recognition has become ubiquitous. Phone companies retain voices
to help "teach" their software to read different accents, Google
does the same thing with spell checking on search requests, and
Las Vegas casinos use visual recognition software to stop card-
counters from coming into the casinos.
2:01:26 PM
MR. SVOBODNY said the foregoing examples don't relate to the
department too much, but collecting or retaining fingerprints
does because DOL often relies on private investigators from
insurance companies to do arson examinations. AS 18.70.090 is a
specific statute that says that the police can and should
cooperate with private investigators from insurance companies in
arson investigations. For that reason, fingerprints may well be
collected and retained.
Although the changes in the CS exclude government agencies, it
doesn't include the agents of those government agencies. For
example, village public safety officers (VPSO) don't fit the
definition of a government agency and they wouldn't be able to
collect or transmit fingerprint or DNA samples from a crime
scene under this. Tribal public safety officers (TPSO) would be
similarly limited.
2:04:07 PM
SENATOR WIELECHOWSKI highlighted that page 2, lines 1-12,
specifically say that the prohibitions in subsection (a) do not
apply to DNA samples or other biometric information collected
for law enforcement purposes. He asked if that exclusionary
provision wouldn't apply to those situations.
MR. SVOBODNY said an ambiguity in a criminal statute always goes
to the defense. "Because you define out from governmental
entities VPSOs [and] TPSOs - there's that ambiguity that means
the state in a criminal case loses."
SENATOR FRENCH asked if he's saying that the exclusionary
provision conflicts with Section 3.
MR. SVOBODNY said yes on page 2, line 31.
SENATOR FRENCH asked if it would alleviate his concern to say,
"a person who is not a governmental entity or who is not engaged
in a law enforcement purpose commits the crime…"
MR. SVOBODNY answered yes.
2:06:20 PM
MR. SVOBODNY said his two final points are civil as opposed to
criminal. First, this creates a private right of action and
people can and will sue. Although this won't affect the state
very much, he said he wanted to mention it as a point of ethics.
Second, he said he doesn't know what the "willing" requirement
for informed consent on page 1, line 10, really means.
MR. SVOBODNY summarized that DOL's concern centered on the
agency issue and dealing with insurance companies that are
providing services to law enforcement or others who are acting
at the request of law enforcement.
2:08:47 PM
SENATOR COGHILL asked his perspective on calling the definitions
for biometric information terms of art and questioned whether
the meaning of "collect" will be problematic with this much
broader category.
MR. SVOBODNY acknowledged that he was concerned about the word
"collect" in light of the expanded area of things you cannot
collect. He related that for crime to occur there will have to
be a culpable mental state, but unless it's defined differently,
the person will have to knowingly collect. A larger concern with
the current language relates to retention although he can't
imagine people being prosecuted for inadvertently collecting and
retaining fingerprints. In fact, an Alaska court has said that a
person does not have a privacy interest in their fingerprints
just as they don't have a privacy interest in their address or
face. This would change that court decision by statute, he said.
SENATOR COGHILL asked if the right to action with respect to
collection would be because the intention was to cause the
person damage or because another person or entity would gain.
2:11:45 PM
MR. SVOBODNY said the bill does have a $5,000 penalty provision
and a higher penalty provision if the person is seeking
financial gain from someone who obtained or retained their voice
for economic benefit.
SENATOR COGHILL asked if there's any reason to be concerned with
the definitional terms of art under biometric information.
MR. SVOBODNY said he doesn't understand facial recognition to
mean taking a photograph. He hasn't done research to know if
facial recognition and voice recognition have specific meanings,
but he assumes that they do. Certainly there are lots of
examples of their use.
2:14:09 PM
SENATOR COGHILL said these definitions will be very important if
someone wants to bring action. The bill specifies certain fines,
but he's trying to figure out how you defend yourself.
JEFFREY MITTMAN, Executive Director, ACLU of Alaska, thanked the
sponsor for introducing good, proactive legislation that
appropriately balances the needs of law enforcement and the
constitutional rights of Alaskans. SB 190 expands current law to
include biometric information, which has become important in
business and law enforcement. The ACLU of Alaska supports the
bill, he concluded.
SENATOR COGHILL asked if he had studied any of the terms under
the definition of biometric information.
MR. MITTMAN replied he isn't familiar with any specific case law
that would apply in this context.
2:16:50 PM
BILL SCANNELL, representing himself, reported that he is a
privacy activist speaking in strong support of SB 190. He
suggested that the committee put things in perspective by
considering the difference between losing your wallet fifty
years ago and losing it today. Then you'd lose the money in your
wallet and now "when you lose your wallet in many ways you can
lose your life," he asserted. He cited the Clear program, which
was supposed to expedite a person's trip through airport
security, as an example. When that company went bankrupt, tens
of thousands of people found that their retina scans,
fingerprints, hand geometry, and facial patterns were being sold
to the highest bidder. People need to understand how important
these biometric issues are and the role of the state in
protecting all Alaskans from both misuse and poor
implementation, he said.
MR. SCANNELL asked the committee to think about two things. 1)
SB 190 will create an overall policy of buying technology that
is appropriate to the job at hand; and 2) this is a good pre-
emptive move to ensure that if a biometric program is found that
works, that biometric won't be wasted.
2:20:29 PM
CHAIR FRENCH asked Mr. Ascott if the bill had received any
pushback.
MR. ASCOTT aid the National Council of Life Insurers contacted
the sponsor and suggested an amendment to significantly narrow
the definition of biometrics. That was done, but the definition
may have to be narrowed further to remove the term "DNA" because
it's already been defined.
SENATOR COGHILL pointed out that the original legislation was
quite specific with respect to getting a DNA sample and holding
it for a period of time whereas this bill is significantly
broader. I'm open to suggestion, he said, but I really haven't
got my mind around how this is going to work. He said some of
his concerns about voice recordings and pictures have been
allayed, but how that information is collected could be
significant. Some of these things are very technical and
specific, but they aren't specific in the bill, he said.
2:23:23 PM
SENATOR WIELECHOWSKI said we'll sit down with you and the
Department of Law and try to iron out the concerns because we
don't want unintended consequences. What the bill is trying to
do is to stop the expansion of the surveillance society in the
U.S. - particularly in Alaska.
CHAIR FRENCH announced he would hold SB 190 in committee.
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