Legislature(1999 - 2000)
04/19/2000 01:25 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
SB 259 - CRIMES: REPRESENTATIONS/I.D./COMPUTERS [There is considerable discussion of HB 338, which is similar but not identical to SB 259.] CHAIRMAN KOTT announced that the next order of business would be CS FOR SENATE BILL NO. 259(JUD), "An Act relating to crimes and offenses relating to aural representations, recordings, access devices, identification documents, impersonation, false reports, and computers; and providing for an effective date." Number 1140 ANNE CARPENETI, Assistant Attorney General, Legal Services Section - Juneau, Criminal Division, Department of Law, informed the committee that she was present at the request of Jim Pound, Staff to Senator Taylor, who had a conflicting responsibility. She noted that this legislation is similar to the Governor's bill that was recently passed. Ms. Carpeneti announced that the Criminal Division of the Department of Law is in support of the passage of CSSB 259(JUD). She offered to review the differences between HB 338 and this legislation. REPRESENTATIVE ROKEBERG requested that Ms. Carpeneti editorialize as she reviewed the differences between the two bills. MS. CARPENETI directed the committee to the first change located on page 2, line 14, [of both CSHB 338(JUD) and CSSB 259(JUD)]. The House bill refers to "other printed or electronically recorded material", while the Senate version refers to "or other material" per the suggestion of Jerry Luckhaupt, Attorney, Legislative Research and Legal Services. She explained that Mr. Luckhaupt feels that the language in the House bill is redundant and that "material" is adequate. Ms. Carpeneti said that is fine. MS. CARPENETI then referred to page 4, line 10, which she noted may cause concern, although she hoped that it wouldn't. She noted that the [referenced language] is one of the three culpable mental states for criminal impersonation in the first degree. Page 4, line 10, of the Senate bill reads "with criminal negligence, damages the financial reputation of the other person", while the House bill changed the language to read "recklessly damages the financial reputation of the other person." She pointed out that the state already has to prove the culpable mental state of "knowingly" for the first two prongs. [In the Senate version] the state has to prove that the person "knowingly" possessed "an access device or identification document of another person", "without authorization of the other person, uses the access device or identification document of another person to obtain a false identification document, open an account at a financial institution, obtain an access device, or obtain property or services" and "with criminal negligence, damages the financial reputation of the other person." Therefore, Ms. Carpeneti urged the committee to keep the [language] in the Senate bill [located on page 4, line 10,] because [the state] already has to prove the culpable mental state of "knowingly" for the first two prongs. Number 1361 MS. CARPENETI said, in response to Representative Croft, that she didn't explain the "knowingly" state very well and thus she specified that "knowingly" would be read into it by the court. She explained, "In default of a culpable mental state, the court will read in knowingly' as to acts and recklessly' as to circumstances." REPRESENTATIVE CROFT posed a situation in which he "knowingly" has and uses his wife's ATM card without his wife's permission. He specified that he uses her ATM card to obtain say $300 and accidentally causes a problem that financially damages his wife's financial reputation. He asked, "Shouldn't we have a high standard there? If I do that negligently, I've just committed this crime, haven't I?" MR. CARPENETI replied, "With criminal (indisc.)" However, she pointed out the need to consider the definition of financial reputation when considering the possibility that a person could do it carelessly. That definition is on page 6, lines 1-5, of CSSB 259(JUD). She stressed that one would have to do something bad enough that it would have to be noted on a credit report. REPRESENTATIVE CROFT referred to Section 6(2) of CSHB 338(JUD), which refers to the lack of authorization, that he believes is the protection. He inquired as to what would happen if one does something without authority, even though the person says, after the fact, that action was fine. MS. CARPENETI related her belief that a person could retroactively give permission to utilize his/her credit card. In further response to Representative Croft, Ms. Carpeneti indicated that retroactive permission could occur in a family situation. She hoped that these are applied with common sense. REPRESENTATIVE CROFT related his hope that these are written with care as well. MS. CARPENETI agreed. Number 1510 REPRESENTATIVE CROFT continued with the example of using someone's [access device] without his/her authorization. He said, "The question becomes: Did you accidentally or intentionally damage the financial representation?" He asked why [paragraph] (3) [of CSHB 338(JUD)] is based on a recklessness standard rather than an intentional [standard]. He recognized that the person didn't have authorization, but what he/she is being punished for is damaging "the stuff." MS. CARPENETI said that is correct. She, then, related the situation of a Ketchikan woman in which someone obtained her credit card number from a hotel in the Seattle area. With that information, websites can be used to obtain a person's social security number. In this case, once the social security number was obtained, the person opened a bank account and purchased a car. Ms. Carpeneti informed the committee that nothing ever happened to this person, who was posing as the Ketchikan woman, even though the Seattle police knew of the situation. Even if the State of Alaska had jurisdiction and this statute was in place to prosecute this person, it would be difficult to prove that this person intended to damage this person's financial reputation. She said that this person intended to steal money to purchase items, although this person's behavior ruined the Ketchikan woman's reputation. Therefore, it is difficult to prove intent. She specified that with a recklessness [standard] it would have to be proven that the person knew of the risk and consciously disregarded it. She further specified, "Criminal negligence would ... require use to prove that her failure to perceive it was so bad that she should be criminally liable for what she did." Number 1611 REPRESENTATIVE CROFT asked, "Why don't we key, then, on the salient point of that example, which is the intent to obtain money or other property that you had no lawful right to?" He asked if Section 6(2) [ of CSHB 338(JUD)] comes close. MS. CARPENETI specified that the harm that is being addressed is damaging someone's financial reputation. If the "impersonator" were in Alaska, there are laws that would allow her prosecution for fraud, theft-related offenses. However, the intent of the section under discussion is to establish a defense that makes the victim who lost his/her financial reputation, the victim. At this point, people who loose their identity aren't really considered victims of a crime but rather the bank or the department store [is considered the victim]. REPRESENTATIVE CROFT asked, "We don't have jurisdiction because of that?" MS. CARPENETI reiterated that in the case of the Ketchikan woman whose financial reputation was damaged, all the criminal acts were performed in Washington. Therefore, this legislation was drafted in order for the state "to have something to hang its jurisdictional hat on." She assumed that having a person convicted of a crime like this would help the victim in dealing with credit reporters, et cetera. REPRESENTATIVE CROFT asked if it was determined that [the department] would not have had jurisdiction in the Ketchikan woman's case [under existing law]. MS. CARPENETI specified that she didn't believe a formal interpretation was made because the Ketchikan woman didn't report the problem in this state, although she spoke with Ms. Carpeneti. Ms. Carpeneti informed the committee that the Ketchikan woman worked with the Washington police, but [the case was not a priority]. Number 1756 REPRESENTATIVE GREEN posed a situation in which Maude and Gillespie are getting a divorce. Maude needs money and causes Gillespie to be overdrawn. Maude doesn't really care about what happens to Gillespie, but she isn't really trying to hurt him. He asked if that would satisfy all three of the criteria [specified in Section 6 of CSHB 338(JUD)]. MS. CARPENETI replied that it would depend upon whether it could be proven that Maude was using his access device and not a common access device. REPRESENTATIVE GREEN clarified that in his example Maude would be using Gillespie's [access device]. MS. CARPENETI answered, then, that it would have to be proven that Maude didn't have any authorization to charge on Gillespie's account. This would have to be proven beyond a reasonable doubt. Furthermore, it would have to be proven that she knowingly used it to obtain a false identification card or obtain property and with criminal negligence. REPRESENTATIVE GREEN inquired as to what that would mean because he understood it not to be intent if it's negligence. MS. CARPENETI informed the committee that criminal negligence is: a person acts with "criminal negligence" with respect to a result or to a circumstance described by a provision of law defining an offense when the person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists; the risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. REPRESENTATIVE GREEN said that Maude is mad and she doesn't exercise a reasonable [standard of care]. MS. CARPENETI specified that Maude would have to perform a gross deviation, which is difficult to prove in domestic situations. Number 1870 REPRESENTATIVE KERTTULA expressed concern with criminal negligence being a state of mind when there is a class B felony. She posed a situation in which a 20-year-old son takes another person's credit card at the local video store in order to obtain property. The store is one which lists those persons who don't return videos. She indicated that somehow the son doesn't pay correctly with the credit card and thus it damages the financial reputation of the owner of the credit card, which would be a class B felony. MS. CARPENETI pointed out that [such a situation] would not be included in the definition of financial reputation as that definition includes the ability to get a loan or credit worthiness on a credit report. Therefore, [such a situation] would not fall under this. She reiterated that "knowingly" has to be proven [on the first two criteria]. REPRESENTATIVE KERTTULA indicated her understanding that the situation she posed would refer to obtaining property or services on credit. She asked if it would affect a person's ability to obtain property or services on credit. REPRESENTATIVE CROFT clarified that the person's credit card that was used and the bill that wasn't paid would result in the owner of the credit card not being able to rent from the store anymore. REPRESENTATIVE KERTTULA pointed out that there are some things that end up on credit [reports] such a rentals. She remarked that for a class B felony, one would not want to take in some of the more minor things. Therefore, she wondered whether there is a way to restructure the class B felony such that the intent or some other aspect is raised and dropped down. She suggested that perhaps criminal negligence is included for a lower felony or misdemeanor. MS. CARPENETI reiterated that the House Judiciary Committee changed it to "recklessly" [in CSHB 338(JUD)]. REPRESENTATIVE KERTTULA specified that she wondered whether it would be more appropriate to change the intent language and keep it a class B felony and drop down and have another section of criminal negligence as a misdemeanor or class C felony. MS. CARPENETI said that would be something to consider at another time. However, in reference to [CSSB 259(JUD)] she recommended the same change as encompassed in [CSHB 338(JUD)]. Number 2013 MS. CARPENETI returned to the [differences] between the two bills. She referred to page 4, lines 17 and 20, and pointed out that CSSB 259(JUD) includes the language "commit a crime" in reference to second degree criminal impersonation. She noted that [language referring to a situation in which] one assumes a false identity and performs an act in the assumed character with the intent to commit a crime is included in the Senate bill but not the House bill. REPRESENTATIVE ROKEBERG asked if that means that one can be charged both with first and second degree criminal impersonation. MS. CARPENETI replied no, she didn't think so. She explained, "What we would have to prove in addition to anything under second degree is that you harmed the financial reputation of another person." MS. CARPENETI returned to the differences between the two bills. She referred to page 4, line 24, [of CSSB 259(JUD)], which is the definition of business record. She noted that this is another suggestion by Mr. Luckhaupt. The House version says, " business record' means a writing, a recording, electronic data, or an article kept or maintained by an enterprise for the purpose of evidencing or reflecting its condition or activity" while the Senate version [per Mr. Luckhaupt's suggestion] says "'business record' means a writing, recording, or article kept or maintained by an enterprise for the purpose of evidencing or reflecting its condition or activity." She said that Mr. Luckhaupt feels that the reference to "a recording" is adequate to cover electronic data. Ms. Carpeneti said that she didn't have any strong disagreement with that. MS. CARPENETI moved on to page 6, lines 6-17, of [CSSB 259(JUD)], which is Section 14. She pointed out that Section 14 is not included in the House version. Section 14(1) reads, "gives false information to a peace officer with the intent of implicating another in an offense [A CRIME]", which would result in a misdemeanor. A member of the Senate Judiciary Committee was concerned that a person could have another person's identity. The situation was posed in which a person with another's identity could be driving and when stopped provide the false identity and thus the driving record of the other person would reflect the driving violation that was committed. Ms. Carpeneti said that she didn't object to [Section 14 in CSSB 259(JUD)]. Number 2149 REPRESENTATIVE ROKEBERG suggested that a dollar cap might be more appropriate when differentiating between first and second degree rather than leaving the standard alone. He indicated that a dollar cap would alleviate some of Representative Kerttula's concerns regarding petty criminal activity. MS. CARPENETI reiterated that the legislation is attempting to address the harm to someone's financial reputation, which is defined fairly narrowly. She informed the committee that the definition [of financial reputation] is a person's credit worthiness on a credit report or the person's ability to obtain a loan or credit. This doesn't address the traditional type of theft. Ms. Carpeneti stated, "I would prefer, if the committee chooses, to just raise the culpable mental state to recklessness on line 10." REPRESENTATIVE GREEN asked if these minor changes caused the change in the fiscal note. MS. CARPENETI said she didn't believe so. The fiscal notes basically cover the costs of training police officers and prosecutors, at this point. She noted that Senate Finance did some serious work on the fiscal notes, which resulted in smaller fiscal notes. REPRESENTATIVE ROKEBERG remarked that the changes are so de minimis that to force this back to the Senate would take more time. REPRESENTATIVE JAMES commented that she would like to know where the money is coming from. REPRESENTATIVE GREEN indicated agreement and pointed out that the fiscal note(s) is for $120,000. He also pointed out that there are four different fiscal notes. MS. CARPENETI informed the committee that [CSSB 259(JUD)] has to go to the House Finance Committee. Number 2311 LIEUTENANT DAVID HUDSON, Department of Public Safety (DPS), testified via teleconference from Anchorage. Lieutenant Hudson commended Ms. Carpeneti in her discussion regarding how the [CSSB 259(JUD)] would work and benefit the public in the future. He informed the committee that when this legislation was initially brought forth by the Governor, DPS had a trooper position associated with this in order to investigate the crimes referenced in the legislation. Lieutenant Hudson noted that he had contacted various law enforcement agencies around the nation as well as the Federal Bureau of Investigations (FBI) in an attempt to understand the technology and how it will affect investigative techniques and skills. He remarked that [the technology] is very dynamic and [ever]changing. In general, an Alaskan State Trooper Investigator is a multi-purpose and multi-task individual, who doesn't develop much specific expertise in one small... [Lt. Hudson's testimony was interrupted due to technical difficulties.] The committee took a very brief at-ease at 2:10 p.m. and returned to order in less than a minute. [The tape was reversed to Side B and begins recording when the committee comes back to order.] TAPE 00-68, SIDE B LIEUTENANT HUDSON expressed concern that because of this technology and the dynamic advancements, [the department] feels that it will be difficult to adequately support these criminal investigations based on the fact that there will not be an extra position for this. He indicated that [the department] is looking across the state for support and investigative techniques for [all] law enforcement officials as well as the Alaska State Troopers. However, the current situation includes numerous unsolved homicides and lawsuits pending in regard to charges of inadequate police services in Western Alaska. He stressed that the reasoning behind the original fiscal note remains valid and he wished that would be considered. Number 0061 BLAIR McCUNE, Deputy Director, Public Defender Agency, Department of Administration, testified via teleconference from Anchorage. He noted that there has already been much discussion regarding his concern, which is that these are property offense crimes. He said that the level of punishment should be related to the cost or financial damage to someone. Furthermore, with higher levels of property offenses [the agency] feels that it is important to include an intent to defraud so that an intentional act is proven. Mr. McCune referred to Section 4 of CSSB 259(JUD) and pointed out that subsection (b) refers to the general levels of offenses in regard to property crimes. The new crime, criminal impersonation in the first degree, is about equal in level to an offense in which one takes or obtains the property of another person [in the amount] of $25,000 or more. Mr. McCune said that he felt it is important that the punishment fit the crime in these cases. MR. McCUNE directed the committee's attention to [AS] 11[.46.285] of CSSB 259(JUD), which [the agency] believes includes broad language. With regard to the class C felony in [Section 4(b)(2)], that relates to obtaining between $500 and $25,000 worth of property or services. Although it can be bad to enter false information into a computer and damage the data or financial reputation of another person, it may be something that is bad at the level of a class B or class C misdemeanor. Therefore, the offense wouldn't warrant the severe punishment set out in this legislation. Number 0170 MR. McCUNE turned to Section 10, which addresses deceptive business practices. If a person uses the Internet or a computer network to commit deceptive business practices, this would make it a class C felony. He noted that would include making false statements in advertisements. Again he agreed that people shouldn't do that, but he indicated that a class C felony shouldn't be imposed if the damage isn't at that level. In conclusion, Mr. McCune informed the committee of his concern that the definition of "access device" is very broad. The definition of "access device" is found in Section 17. He pointed out that any one of the items listed, such as a social security number, can be included as a theft. Again, he reiterated that merely obtaining numbers shouldn't be punished to the extent it is in this legislation. Number 0236 REPRESENTATIVE KERTTULA inquired as to what Mr. McCune would suggest in the situation where the problem is not monetary damage but rather the damage done to a person's reputation. She asked if he believes raising the standard to "reckless" would help in Section 6 or should it be split into different classes of felonies while maintaining criminal negligence as a lower felony. MR. McCUNE stated that he was glad to see the change to "recklessly." In regard to the damage of a person's financial reputation, he suggested splitting it out financially. Mr. McCune believes that the problem is that banking and financial practices make it easy for people to make financial transactions with minimal information. Perhaps the solution is to tighten the banking and commercial transaction processes. However, he hoped that [the legislation] could include a "reckless" standard and relate the offense to a level of damage to a financial reputation. MS. CARPENETI remarked that a class B felony is a serious offense because it should be, as this is serious conduct. A person whose identity is stolen is never whole again. For example, the Ketchikan woman has to order a credit report every three months; and furthermore she can never open an account on her own. This Ketchikan woman is never sure when this individual is going to start purchasing things on her account. She said, " It's really serious conduct and that's why it's a [class] B felony." In regard to deceptive business practices, she explained that it is raised to a class C felony with the use of the Internet or a computer network because the pool of victims is larger. REPRESENTATIVE ROKEBERG inquired as to the penalty with Section 11. MS. CARPENETI answered that criminal use of a computer carries a class C felony. She pointed out that this is current law. She explained, "The purpose of criminal use of a computer is ... to outlaw people who get into a computer that they shouldn't get into , ..., and then they manipulate data, personal data or proprietary data." This merely adds more conduct to the type of manipulations that can be performed. REPRESENTATIVE ROKEBERG identified [Section 11] as the anti-hackers clause. MS. CARPENETI clarified that [this provision] addresses hacking and then doing something with the information that you had no right to do; this does not just address hacking. REPRESENTATIVE CROFT referred to page 5, lines 17-18, regarding someone enhancing a person's financial record. REPRESENTATIVE ROKEBERG pointed out that could be done in order to obtain a loan fraudulently. Number 0490 REPRESENTATIVE KERTTULA moved that the committee amend CSSB 259(JUD) [Amendment 1] on page 4, line 10, by deleting "criminal negligence" and inserting "reckless". She noted that if there was a way to split these financially, she would go for that because she strongly feels that this is a terrible crime akin to (indisc.). However, she can't overcome that criminal negligence is the lowest standard and to make that a class B felony is extreme. Therefore, she believes beginning with a reckless [standard] provides a good tool to prosecutors. REPRESENTATIVE ROKEBERG objected. He recalled a trip that he took a few years ago. A few months after returning from the trip, he began to receive bills due to the theft of his American Express Card. Although he was able to stop the spree by changing his credit card number, he was upset and felt intruded upon. He stressed that stealing property amounting to $25,000 is nothing; a person's reputation is worth more than $25,000. Therefore, Representative Rokeberg said that he had no problem with a class B felony. REPRESENTATIVE JAMES commented that if one has ever had anybody go through his/her house, it is the worst experience. Upon a roll call vote Representatives Murkowski, Croft, Kerttula and Kott voted in favor of the adoption of Amendment 1 and Representatives Green, Rokeberg and James voted in opposition to the adoption of Amendment 1. Therefore, Amendment 1 was adopted with a vote of 4-3. Number 0712 REPRESENTATIVE CROFT moved that the committee report [CSSB 259(JUD)], as amended, out of committee with individual recommendations and the attached fiscal notes. There being no objection, HCS CSSB 259(JUD) was reported out of the House Judiciary Standing Committee.
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