Legislature(2001 - 2002)
02/21/2001 01:07 PM House JUD
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* first hearing in first committee of referral
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HB 32 - SEX CRIME AND PORNOGRAPHY FORFEITURES Number 680 CHAIR ROKEBERG announced that the next item of business before the committee would be HOUSE BILL NO. 32, "An Act relating to the forfeiture of property used to possess or distribute child pornography, to commit indecent viewing or photography, to commit a sex offense, or to solicit the commission of, attempt to commit, or conspire to commit possession or distribution of child pornography, indecent viewing or photography, or a sexual offense." Number 692 REPRESENTATIVE JOE HAYES, Alaska State Legislature, came forward to testify as sponsor of HB 32. He said: As the use of computers and the Internet expands, so, too, do crimes involving the use of these technologies. One area of particular concern is sex crimes against children. Adults prone to abusing children will use the Internet to solicit a minor for sex or to set up a meeting with a child in order to rape or abuse the child. Further, many people who are inclined to distribute or view child pornography are now using their computers to do so. These are new technologies, and the state still has relatively few tools for dealing with criminals using these technologies. House Bill 32 provides us with another tool to use in combating sexual predators. Across the country and at the federal level, there are forfeiture laws in place. Several other states already have laws on the books specifically relating to the forfeiture of computers used in sex crimes. The use of computers in sex crimes is a national problem. As more and more states pass forfeiture legislation, it is becoming increasingly obvious that this is a useful and valuable tool in the fight against computer crimes. House Bill 32 would make it possible for the police to stay on top of this rapidly changing industry without spending more state dollars. Advances in computer technologies seem to happen on a daily basis. New technology can often "outwit" last year's model computers, leaving the police at a large disadvantage in their attempt to curb crimes committed with the aid of the newest technology. In order for the police to combat computer and Internet crimes effectively, it is imperative that they be constantly provided with new hardware. Under AS 12.55.015(c), the court may award forfeited property or a percentage of it to any municipal law enforcement agency involved in the arrest or conviction of the defendant. This would allow for the courts to pass on seized property to the police so that the police can stay up to date with available technology in a cost-effective manner. HB 32 is designed to help protect our children in a twofold manner: 1) forfeiture is a proven tool in the fight against crime, and 2) the forfeited property can be given to our law enforcement agencies in order to help make sure that they have the necessary tools to protect our children. I ask for your support in passing this legislation. Number 0856 REPRESENTATIVE HAYES presented letters of support for HB 32 from the Anchorage Police Department, the Alaska Peace Officers' Association, the Public Safety Employees Association, and the Interior Alaska Forces, a forensic recovery computer evidence specialist group in Fairbanks. He also provided background information concerning recent sex abuse crimes in the Fairbanks community and statewide involving the Internet. Representative Hayes noted that there was a zero fiscal note and one letter of opposition from the Naturalists Action Committee. Number 0900 CHAIR ROKEBERG called attention to the lateness of the hour and noted that there were four people on the teleconference line as well as others whose testimony he would like to take that day. He asked that questions be held to a minimum. Number 0956 MARK T. MEW, Deputy Chief, Anchorage Police Department, testified by teleconference. He said the Anchorage Police Department favors HB 32. The department does a fair amount of undercover investigation using computer equipment, and would welcome the opportunity to acquire through seizures the tools that perpetrators are using in order to use it against them. Number 0997 REPRESENTATIVE MEYER recalled that the Anchorage assembly had run into "all sorts of problems" in relation to a forfeiture ordinance. He asked how HB 32 differs from that. MR. MEW said the forfeiture ordinance attempted in Anchorage applied to certain felony activities and to some misdemeanors in the area of vice crimes. Some of the objections revolved around whether the police would seize property if someone were arrested as opposed to if someone was convicted. He noted that under HB 32, conviction is required. Another objection revolved around who was going to provide oversight, monitoring law enforcement zeal for acquiring equipment. He did not think it was fully understood at that time that the answer was the court system, which is involved in either an arrest or a conviction. That is probably less of an issue in HB 32 because conviction is required. Number 1100 REPRESENTATIVE COGHILL noticed that on page 1, line 9, it says, "used to aid in a violation." He added: If somebody misused his equipment, would he have to give it up. MR. MEW said that was what the wording says, but he assumed it would be up to the police department and the prosecutors to determine at what point it was legitimate to invoke [confiscation], and the court would have to agree. Number 1206 ROSS PLUMMER, Police Officer, Anchorage Police Department, testified by teleconference in support HB 32. He has dealt with numerous forensic cases as well as child pornography cases on the Internet. "These people are serious about the business they're in and that is to harm children," he said. He noted that [offenders] have their own equipment and usually do not risk exposure by using somebody else's. Number 1239 REPRESENTATIVE OGAN asked Mr. Plummer if he would object to changing the language of HB 32 to make sure the equipment is owned by the person who perpetrated the crime. MR. PLUMMER that there are mechanisms used by the prosecutors and the court system in determining whether equipment will be seized. Number 1274 CHAIR ROKEBERG noted that there had been a request to exclude indecent exposure in the second degree (a class B misdemeanor) from the provisions of HB 32. He asked Mr. Plummer if he thought it would be appropriate to include or exclude indecent exposure. MR. PLUMMER said he considers indecent exposure to be a different type of crime "than what we're talking about with the use of the Internet and computers as a crime." Indecent exposure doesn't seem to him to fall into what he sees as the intent of HB 32. CHAIR ROKEBERG asked if in connection with the Internet, he had ever charged anybody with indecent exposure in the second degree. MR. PLUMMER said he had not. Number 1340 MARC POESCHEL, Police Officer, University of Alaska Police Department, testified by teleconference in support of HB 32. He explained that the Interior Alaska Forces group was formed to combine forces against Internet predators and computer criminals, and to provide training and assistance to those sworn to protect. He commented on the issue of confiscating property that does not belong to the person convicted. When someone frequently violates the law while using a computer that is not his or her own, (in an Internet cafe or a business that provides access to the Internet), he thinks it is important to maintain the avenue of forfeiture for the business as well. House Bill 32 will make a big difference to the Interior Alaska Forces group because it lacks funding in many areas. Computers and training are so expensive that it is very difficult to stay current, and being able to confiscate computers used by people who perpetrate crimes against children would make it much easier for police to try to keep up. CHAIR ROKEBERG recalled that a few years back there was a case at the University of Alaska - Fairbanks involving an employee using a university computer while trafficking in child pornography. He asked Mr. Poeschel if he thought the university's computer should have been confiscated. MR. POESCHEL said he thought the courts would have to determine whether forfeiture would be appropriate. In a situation in which equipment is used repeatedly for that type of crime, he thought that confiscation should not be ruled out. However, he thought HB 32 is aimed more toward those who use their own computers. Number 1519 JAMES WELCH, Chief of Police, Fairbanks Police Department, testified by teleconference in support of HB 32. He told members that pornographic use of the Internet is a big issue throughout the nation and in Alaska. Fairbanks has followed Anchorage in passing a forfeiture bill allowing the seizure of vehicles being driven by those under the influence of alcohol or drugs. There are state and federal protocols regarding forfeiture in drug-related cases and other criminal offenses, and he thinks HB 32 "somewhat mirrors those efforts." There is always concern about law enforcement depriving someone of property, he said, but with the ability of the court system and the prosecutor's office to work out those issues and the system of due process in place to protect an individual's rights, he is comfortable with HB 32 as written. He said he thinks it sends a message that these crimes will not be tolerated. CHAIR ROKEBERG asked Mr. Welch what he thought about including or excluding reference to indecent exposure in HB 32. MR. WELCH agreed with previous testimony that as a rule, the people involved in indecent exposure cases are not those involved in child pornography. Number 1547 REPRESENTATIVE BERKOWITZ observed, "It may well be that you wind up with a reduced charge as part of a negotiated settlement to a case, in which instance you might also want to retain the ability to forfeit the instrumentality." MR. WELCH added that the prosecutor's office needs broad outlines to effectively manage any statutes. Number 1690 JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties Union (AkCLU), came forward to testify. She commended the sponsor of HB 32 for requiring conviction prior to forfeiture. In a number of states, that has been a problem. The ACLU recognizes a legitimate need of law enforcement to keep pace with computer technology and to protect children, she said, and applauds the sponsor for having that as the rationale for his bill. The AkCLU is happy with the fact that this is a discretionary forfeiture and that forfeiture is not mandatory under the statute. MS. RUDINGER continued: However, we do see a number of points, three points primarily, where the statute is subject to a challenge on the grounds of "overbreadth," in other words, that it reaches too far and it goes beyond what the sponsor probably intends for it to do. First of all, the statute appears to apply even to rudimentary equipment like cameras, a darkroom, binoculars, anything that could be used to commit these crimes. It does not necessarily in the statute specify that it has to be high-tech equipment. So the AkCLU would urge some sort of an amendment clarifying that there should be an adversarial preliminary hearing prior to forfeiture to determine whether in fact law enforcement needs the property in order to keep pace with technology, which seems to be the sponsor's intent. Second, there seems to be no requirement in here that the equipment seized must be owned by the person convicted, and we agree with Representative Ogan, who raised this point. If a kid is staying at his grandma's house, are we going to go and seize Grandma's computer? If an employee is using his employer's computer, are we going to storm into businesses and take computers? There is nothing in the bill that specifies ownership is required, and we would strongly urge that ownership should be a condition precedent to forfeiture. Finally, the third point we have in terms of overbreadth is that it doesn't seem for purposes of helping law enforcement keep pace with technology that a permanent forfeiture is warranted. There may be other legitimate uses, for example, for a hard drive. Maybe other people in the household use that for work or for a livelihood, and it seems to me that perhaps the forfeiture could be temporary so that law enforcement could learn about the technology but that there is not a legitimate government interest in saving money by taking citizens' property in order to not have to buy it themselves. MS. RUDINGER mentioned that the United States Supreme Court has accepted a case that asks the question, "Is it a crime at all to view digital imagery of children where no real person was the subject of the image?" MS. RUDINGER volunteered that the AkCLU will be happy to work with the committee on crafting some narrowing amendments to protect HB 32 from an overbreadth challenge. Number 1950 DEAN GUANELI, Chief Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, came forward to testify. He noted that there are some general principles of law that relate to forfeiting property that is not owned by the offender. The primary concept is deprivation of property without due process of law. The owner of the property has a right to be heard in court, and if that person can show that he or she did not know of the violation and had no reason to know of the violation, it would be unconstitutional to take that person's property. That even would apply to someone else within the family. MR. GUANELI said in addition, there also has to be some finding by the court that this property was used to aid a violation of the law. He concluded that even though it isn't specifically stated, there are sufficient procedures established in case law to protect innocent owners from having their property taken. CHAIR ROKEBERG asked if it was unnecessary to speak to that in HB 32. MR. GUANELI said he thought it is always better to set things out specifically in statute. There are forfeiture provisions scattered throughout the statutes, and it might be good at some point to have a definitive forfeiture procedure set out somewhere in the law. Up to now, it has bean dealt with by case law. CHAIR ROKEBERG wondered if it would be appropriate to say that a finding [regarding forfeiture] would be made at the sentencing hearing. MR. GUANELI said he didn't think that was necessary. Number 3331 CHAIR ROKEBERG noted that there were several suggestions for amendments and that the meeting time was running out. He wanted to hold the hearing open in case someone else wants to speak to HB 32. He proposed to work with the sponsor and the committee aide to come up with a committee substitute and asked for suggestions to guide the drafting. Number 2255 REPRESENTATIVE BERKOWITZ suggested an amendment limiting forfeiture to property that is an instrumentality of the crime. That would mean property that's not just used in the commission of the crime, but that is directly and materially contributing to it. The language of "direct and material contribution" comes from a Michigan statute, he noted, which is included in the packet. There is always a concern that the state may take more than is proportionate to the crime. "Direct and material" linkage assures that the seizure of property is proportionate. CHAIR ROKEBERG said he thought HB 32 should limit forfeiture to electronic type property, which is the thrust of the bill. REPRESENTATIVE BERKOWITZ cautioned, "Once you get into that area of specificity, then you take away the discretion ...." CHAIR ROKEBERG said he would like to see the bill as specific as possible, keeping in mind Representative Berkowitz's concern. Other issues that needed to be addressed in relation to confiscation were the ownership of the property and whether the property is going to help law enforcement. He also wanted to make sure real property is excluded, so that houses are not confiscated. He still did not know what to do in response to the nudists' objection to including nude sunbathing, he said. He asked the sponsor of HB 32 to bring back a revised version of the bill to consider as a CS. [HB 32 was held over.]
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