Legislature(2001 - 2002)

04/26/2001 01:53 PM House FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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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