Legislature(2001 - 2002)
04/06/2001 01:14 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
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HB 125 - UNLAWFUL VIEWING Number 1042 CHAIR ROKEBERG announced that the next order of business would be 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." Number 1015 DENISE HENDERSON, Staff to Representative Pete Kott, Alaska State Legislature, presented HB 125 on behalf of Representative Kott, the sponsor. She explained that HB 125 will ban the practice commonly known as "up-skirting or down-blousing," and will amend AS 09.68 by creating a special civil damage provision that will benefit people who have been unlawfully viewed or photographed. She added that HB 125 creates a new crime that will make it illegal to surreptitiously view or photograph someone in the interior of a room without that person's consent. This crime would be a class A misdemeanor. She also said that HB 125 amends the existing crime of indecent viewing by including the viewing of undergarments as well as unclothed body parts. MS. HENDERSON remarked that the modern technology of the Internet has led to the practice of web sites' posting and buying pictures from "high-tech peeping Toms," and telling people where they can buy the type of equipment needed in order to take these types of pictures themselves. She added that web sites promote and encourage this [behavior]. Ms. Henderson explained that HB 125 will not only protect the privacy of Alaskans, but will also prohibit the perpetrators of these types of crimes from realizing any type of monetary gain. MS. HENDERSON, in response to questions, confirmed that HB 125 both creates a civil cause of action [by amending AS 09.68 through the addition of a new section] and expands the misdemeanor provision in current statute - AS 11.61. She added that [HB 125's change to AS 09.68] will allow for civil damages to be pursued. REPRESENTATIVE MEYER inquired whether HB 125 would allow a person to take a picture of someone wearing a swimsuit. MS. HENDERSON explained it would depend on the circumstances; if a person were outside someone's home and took a picture of an individual while he/she was inside, she opined that HB 125 would apply because the person inside his/her home has a right to privacy and the photography would be occurring without that person's consent or knowledge. If, however, the person taking the picture is someone who has been invited into the home - for example, at a hot-tub party - and the subject of the photography knows that the picture is being taken, then HB 125 would not apply and those pictures could be displayed on a web site. In the latter example, she added, the subject of the photography has the opportunity to tell the person taking the pictures not to display them on the Internet. REPRESENTATIVE COGHILL, with regard to Section 2, asked whether it is necessary to use the word "surreptitiously", and if so, whether the meaning would be clear enough. REPRESENTATIVE JAMES responded that it is a word with clear meaning, and that it well defines the topics being discussed. Number 0596 JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties Union (AkCLU), testified via teleconference and said her organization has a number of concerns with HB 125. She noted that when it becomes a crime to take pictures of someone who is actually clothed - albeit skimpy clothing - serious free speech, First Amendment, and Alaska constitutional free speech concerns are raised. Also, with regard to the expansion in Section 4 of the definition of what a picture is, she noted that "image" can refer to a computer-generated image that does not actually involve the use of any human subject, but merely looks like a human being. She cautioned the committee that HB 125 might be premature; the U.S. Supreme Court is going to hear a case in October that asks this very question - whether it is unconstitutional to prohibit the viewing of a computer-generated image that doesn't involve the use of any human subject. She suggested that the committee might wish to delay any action regarding HB 125 so as not to fly in the face of next year's U.S. Supreme Court decision. MS. HENDERSON relayed that Detective Klinkhart - who works in the sex crime division, which deals with a lot of child pornography - is very supportive of HB 125. She added that Alaska is experiencing the problem of pornographic pictures [of children] being sold on the Internet. She offered that Section 3 of HB 125 details how a person commits the crime of indecent viewing or photography: "if, in the state of Alaska, the person knowingly views, or produces a picture of, the private exposure of the genitals, anus, or female breast of another person". She explained that ", or the undergarments of the person covering the genitals, anus, or female breast," has been added to the definition because of incidents wherein cameras have been placed in girls'/women's locker rooms and video tapes have been made of girls/women in various states of undress. She confirmed in response to questions that in these cases, current statute did not allow for prosecution because there was not any real nudity shown, simply views of girls/women in their undergarments. MS. HENDERSON pointed out that although these types of crimes are already addressed in statute, a further effect of HB 125 is to set a precedent so that people do not have the opportunity to have any type of monetary gain from these types of crimes. It has become too easy to go onto various web sites and sell photographs, she opined, and the sponsor of HB 125 wishes to ensure that there is some type of civil provision set up so that people don't have to suffer while others gain monetarily from this type of behavior. Number 0207 ROBERT BUTTCANE, Legislative & Administrative Liaison, Division of Juvenile Justice, Department of Health & Social Services (DHSS), said that [the DHSS] has some concerns with HB 125. As a juvenile probation officer responsible for deciding whether a police report contains probable cause to proceed on taking action against a juvenile offender, he explained that "we" might have problems with the word "surreptitiously" as it is used in HB 125. While there is a legal definition for that word in Black's Law Dictionary, he continued, in circumstance it might be difficult to really separate out the criminals from the non- criminals. He presented the following scenario: I am in someone's living room and I am trying to seek a photograph of the facial surprise of someone opening a present. They might not know that I am actually snapping the picture, and not even know that I took the picture until I e-mail it to someone a few days later and say, "Wasn't that neat that Jane got this present?" MR. BUTTCANE continued by saying that the way HB 125 is written, while this scenario might not result in prosecution, it might be investigated if the subject of the picture was annoyed that his/her photograph was taken. He also pointed out the DHSS engages in a number of activities in which people are photographed as a routine course of business. For example, when people are admitted to the Alaska Psychiatric Institute (API), they are photographed so that the DHSS can ensure that medical records contain a picture of the patient, in order that the correct medication can be administered to the right person. He added that those people are not always voluntarily giving [the DHSS] permission to take those pictures, and sometimes - if, for example, patients entering a medical facility are in a comatose state - they are not even aware that the photograph has been taken. These pictures are being taken and circulated among people who have to have access to that photograph in their normal course of business. MR. BUTTCANE noted that HB 125 does exclude some specific uses of photographs - for security surveillance, for law enforcement - but it does not provide explicit exclusions for the normal course of business in health care professions, hospitals, or juvenile corrections facilities. He suggested that HB 125 could be amended to add this type of exclusion so that there wouldn't be any question that people doing their job would not be subject to [prosecution or investigation]. TAPE 01-58, SIDE A Number 0009 CHAIR ROKEBERG suggested to Mr. Buttcane that he have the attorney general draft an amendment that would meet these concerns. Chair Rokeberg then asked whether the sponsor is endeavoring to address all incidents of photography if it is surreptitious or unknown by the subject to have taken place. MS. HENDERSON said yes. CHAIR ROKEBERG followed up by asking if this is true regardless of the activity of the subjects, such as a birthday party, for example. MS. HENDERSON said no, not in those types of situations. She added that she is willing to entertain any motion, on behalf of the sponsor, that will clarify this. She confirmed that Section 2 of HB 125 is addressing a new crime - improper viewing or photography - and the intention of the sponsor is to make it a crime for a person to photograph someone in any type of position without his/her knowledge. She added that this activity is an infringement of privacy. REPRESENTATIVE JAMES noted that it is getting pretty broad to make photographing candid shots of people a crime. CHAIR ROKEBERG offered that he interprets HB 125 as saying "a photographer can take pictures out on the street without you knowing it, but if you're in the room, he can't do it." MS. HENDERSON said no. She offered the interpretation that if someone were in his/her own home, HB 125 would apply, but if a person were out in public, he/she could not have the same expectation of privacy. REPRESENTATIVE JAMES pointed out that the language in HB 125 simply refers to "a room" but does not specify someone's home. Number 0309 REPRESENTATIVE COGHILL, with regard to the practical application of Section 2 of HB 125, said he thinks the intention is the same as is specified in Section 3, and that it should perhaps be referenced in that first paragraph [of Section 2], lines 8-9. Otherwise, it's going to be wide open, he added. CHAIR ROKEBERG asked whether [Section 2] is intended to include any type of a pornographic situation. MS. HENDERSON replied yes. REPRESENTATIVE JAMES noted that the language doesn't say that. CHAIR ROKEBERG agreed. REPRESENTATIVE MEYER commented that Mr. Buttcane brought forth some good points; sometimes a person will take pictures that the people don't know about, such as in those situations detailed by Mr. Buttcane. CHAIR ROKEBERG granted that subsection (e) of Section 2 does make reference to the meaning of picture as defined in AS 11.61.123, but noted that this did not help clarify the overall intent of Section 2. REPRESENTATIVE MEYER remarked that he thinks HB 125 is a good bill - that the intent of it good - but he added that he also thinks a committee substitute (CS) needs to be created that will address the concerns brought forth. CHAIR ROKEBERG agreed and said he is attempting to "zero in" on specific language. Number 0465 ALVIA "STEVE" DUNNAGAN, Lieutenant, Division of Alaska State Troopers (AST), Department of Public Safety (DPS), testified via teleconference and said that in general, the DPS supports HB 125. He explained that HB 125 tightens up a net of illegal activity where [AS 11.61.123] falls a little bit short. He said that although AS 11.61.123 covers some good topics, it principally is focused on viewing and photography of a sexual nature. By contrast, AS 11.61.121 - the new statute proposed by HB 125 - will cover all viewing or photographing of people in private places if it occurs without their knowledge and consent, whether the context is sexual or the subjects are nude or the subjects are simply going about their everyday business. He surmised that the sponsor's intent is to prevent people from taking pictures of other people doing ordinary things in private places that can then be sold on the Internet. He presented the scenario wherein someone takes a picture of a person and then links the face of that person with the image of whatever body parts the photographer wants, in order to sell the end result on the Internet. LIEUTENANT DUNNAGAN said he thinks HB 125 contains some good exceptions, and he agreed that a few more could be added as suggested by Mr. Buttcane. He opined that [AS 11.61.121] specifically addresses all photographs that are taken of people without their consent in private places. He acknowledged that someone can take a picture of people on the street corner because they have no expectation of privacy there. But when people get into their homes or the bathroom at the Chevron station or any other place, and they close the door and are by themselves or with the people that they choose to be with, then these people do have an expectation of privacy from outside viewers. He opined that these are the types of situations that HB 125 is trying to cover. Number 0644 LIEUTENANT DUNNAGAN, in response to questions, relayed that there was a case in Big Lake a few years ago wherein the owner of an apartment building had placed a sophisticated monitoring system with pinhole cameras in several rooms in the apartments; the perpetrator also had installed false walls and hidden corridors to enable him to view residents in their apartments. Lieutenant Dunnagan surmised that HB 125 would cover this kind of behavior, especially if the perpetrator is taking pictures and viewing everyday normal activities when the occupants are fully dressed and not doing anything that "we" normally think of regarding the term "indecent viewing," such as taking showers or changing clothes. REPRESENTATIVE COGHILL, on the topic of private places, asked whether the term "interior of a room" would provide "an escape hatch" for someone's defense; he then listed the examples of a swimming pool and a hot tub as not falling into the category of being in the interior of a room. LIEUTENANT DUNNAGAN replied that it certainly could be. For example, [an enclosed] hot tub in one's backyard might not necessarily be in a room but would be in the curtilage of one's home and would be protected against certain things. However, if the perpetrator is on the other [side of a] draw on the mountain or a hill overlooking somebody's backyard and is watching and taking pictures of a hot tub party, then HB 125, the way it is written, wouldn't cover that situation because the subjects would be outside. CHAIR ROKEBERG noted that a lot of businesses, as a matter of course, have their own business surveillance cameras that are not necessarily security surveillance, which is provided for in [subsection (d)(1), of Section 2]. And he surmised that most employees would be aware, via their employment contract, when they were under surveillance simply during the course of everyday business. LIEUTENANT DUNNAGAN said that both of Chair Rokeberg's comments are correct. There are all kinds of different monitoring systems out there, he explained, and most businesses use them for some kind of security. For example, it could be to help law enforcement make an apprehension after a robbery; to monitor what goes on in the parking lot, because there are a lot of car- related problems; or to monitor inside a store for shoplifting or to prevent unauthorized access to certain areas. He added that in the latter example, the employees are definitely aware that that sort of monitoring is taking place. He also pointed out that most people know that monitoring occurs in stores and are not surprised to see their faces on the monitor behind the counters of 7-11 stores, for example. Number 0867 JERRY LUCKHAUPT, Attorney, Legislative Legal Counsel, Legislative Legal and Research Services, Legislative Affairs Agency, speaking as the drafter, explained that he had used the word "surreptitiously" in Section 2 because he felt he needed to cover the situation when someone is innocently walking down the street, looks off to the right, happens to look through a window, and sees someone inside the house; that subject would be in the interior of a room, but that viewing would not be conducted in a manner that anyone would see as being unreasonable in any way. So, by inserting the word "surreptitiously", the application of this law would be limited to situations in which someone is doing the viewing or the photography in a way that is sneaky and hidden: it's done in such a way that the subject is unaware that the observation is occurring and hence is unable to stop it, as opposed to a situation in which the camera is visible. For example, if someone walks into a person's office with a camera, that person can see that it is occurring and can take steps to stop it. Or if it is obvious that someone is outside looking in, the subject can close the blinds or curtains. But if the subject does not know that someone is outside looking in, because he/she is hidden, the subject can't stop that activity from occurring because the subject doesn't know about it. MR. LUCKHAUPT explained that HB 125 is designed to provide a criminal penalty for those instances when someone is [viewing or photographing a subject] in a manner that would not normally be expected to occur, and when the subject has a reasonable expectation of privacy, for example, when he/she is in a room instead of being outside. He suggested that using the word "surreptitiously" is a way to narrow the reach of HB 125 because [otherwise] it could be applied indiscriminately to all kinds of conduct when a person happens to observe a subject who feels that he/she deserves some privacy. CHAIR ROKEBERG noted that questions and concerns have been raised regarding the use of the phrase "in the interior of a room". He brought up the point that someone could be inside his/her home in the hallway and it would not be considered "in a room." Chair Rokeberg asked Mr. Luckhaupt whether expanding the interior-of-a-room concept to include "or a place where one would have a legal expectation of privacy" would be too broad, and whether it would then become more of a subjective argument. He acknowledged that Mr. Luckhaupt, as the drafter, was trying to limit the application. Number 1078 MR. LUCKHAUPT agreed that he was seeking to limit the reach of Section 2, and he noted that he had started out using the concept of the interior of some structure - some building, or a residence - but he had not wanted to limit the application just to residences, because there is the expectation of privacy in places of business as well. With regard to the term "curtilage" used by Lieutenant Dunnagan, he noted that it includes the yard and all the areas of a person's real estate - an area that is bounded by a fence. He explained, however, that should it be, for example, a picket fence or - as is the case with the Capitol Building - simply an open area, then an expectation of privacy is not reasonable. REPRESENTATIVE COGHILL mentioned a reluctance to exempt professional journalists from Section 2 when they are engaging in surreptitious behavior. MR. LUCKHAUPT, in response to the suggestion to use the term "in the structure of a home", said he did not want to limit the application of Section 2 just to structures. He added that some of the cases that people have gotten upset about involved businesses wherein someone has been observed, not necessarily by the owner of the business, but by someone else via a hidden camera who has watched and photographed the subject do everyday actions such as picking his/her nose, and then later the pictures were placed on the Internet. CHAIR ROKEBERG suggested that businesses should be exempted from Section 2. He used the example of a business that legitimately monitors its holdings but then later someone else gets a hold of the tape/photographs and uses them to the subject's detriment; he said that the original viewing/taping/photographing should be legal, while misuse of the end product should be punishable. MR. LUCKHAUPT explained that the misuse of the photograph may be illegal under Section 2, but the business owner is going to be exempt under [Section 2, subsection (d)(1)] page 2, lines 19-23, which is the same language used in the indecent viewing statute sponsored by Representative Mackie in response to a Klawock incident. Number 1285 CHAIR ROKEBERG opined that this language did not go far enough because it pertained strictly to incidents with a sexual context. He added that he thinks the language in Section 2 should be expanded to exempt business operations that use surveillance cameras to monitor for performance, not just for security reasons. He said that employees should not have an expectation of privacy, and they also should be notified, via contract, that this is the case. He noted, however, that there is no statutory requirement for notice of surveillance, "just like eavesdropping on the phone call of an employee is legal." As much as "we" love privacy rights, he added, the employer has the right to monitor the productivity of staff. REPRESENTATIVE COGHILL noted that there are places where it would not be appropriate for an employer to monitor staff, such as in bathrooms, dressing rooms, or changing rooms; therefore, he did not want to make that sort of allowance for employers. CHAIR ROKEBERG mentioned the word "surreptitiously." He added that "that type of conduct needs to be exempt from this," and said he did not agree with the drafter that the language in [subsection] (d)(1) goes far enough. MR. LUCKHAUPT explained that the language in [subsection (d)(1)] had originally been arrived at in response to the incident in Klawock. CHAIR ROKEBERG countered that this language, at the time of its adoption, pertained to viewing nude women, which is one of the reasons that there is "an undergarment clause" in HB 125. MR. LUCKHAUPT acknowledged that the "private exposure of the genitals, anus, or female breast" could occur in changing rooms, fitting rooms, and bathrooms, and that the only way [monitoring could be done] is for crime prevention purposes or other security purposes. So to the extent that a business owner is concerned about theft by employees [this monitoring could occur]. CHAIR ROKEBERG countered that the new [AS 11.61. 121, in Section 2] refers to people who have clothes on, generally speaking. Number 1414 MR. LUCKHAUPT responded: I guess it would apply to the use of "surreptitiously"; ... I thought long and hard about coming up with a way to insert something that made this criminal statute a little harder to apply and ... protected that innocent conduct. If it's truly innocent, it isn't surreptitious. If it's with notice to the person, I am not sure that it's surreptitious at that point anymore. CHAIR ROKEBERG said he agreed but added that he was concerned about potential lawsuits unless the committee could come up with a draft that [demarcates] that area strongly enough. REPRESENTATIVE COGHILL reminded members that [Section 2] refers to a class A misdemeanor, and he questioned how far "we" are going to go to "pursue a class A misdemeanor." CHAIR ROKEBERG opined that if something is going to be listed as a criminal activity, then [the statute] should specify what constitutes the crime. MR. LUCKHAUPT added that in addition to the class A misdemeanor, Section 1 provides for civil penalties. CHAIR ROKEBERG, in an effort to assist with the drafting of a committee substitute, suggested expanding the [language in Section 2] to include "the interior of a room or home". MR. LUCKHAUPT offered to just leave it at "peoples' residences". With regard to including business premises, he added, the committee could make that choice. People are entitled to more protection and to have a higher expectation of privacy in their own homes, however; so if the committee chose to make that the demarcation, it would not be unreasonable. There is still the protection against the private exposure of genitals, he added. CHAIR ROKEBERG opined that the sponsor is concerned with the publication and broadcasting of pictures, even those legally obtained. MR. LUCKHAUPT noted that the taking of a legally obtained tape would constitute a theft, which could be prosecuted under current statute. He also noted that a person could pursue the civil penalties provided for in HB 125 even if there is not a criminal charge filed. He added that the civil penalties provided for are substantial and will act to provide a disincentive for engaging in this kind of conduct. Number 1586 CHAIR ROKEBERG, with regard to the drafting of a committee substitute, said: We need to look at the definition of the home - or that scope - where we have the expectation of privacies; I'd like to see something specific here about businesses performing their business; and then Mr. Buttcane brought up some concerns about the agencies and their day-to-day operation, some [of which] might be construed to fall under this. Plus, I am concerned about this whole issue of the rebroadcast being the actual crime and not the taking of the pictures, which I think meets the sponsor's intent .... CHAIR ROKEBERG then asked for clarification on this latter point. MS. HENDERSON indicated that the sponsor did intend for the taking of the picture, as well as the rebroadcast of it, to be included as a crime in HB 125. CHAIR ROKEBERG asked where in HB 125 there is language regarding rebroadcast. MR. BUTTCANE noted that Section 1 contains the language pertaining to transmittal. CHAIR ROKEBERG surmised, then, that only the civil provisions of HB 125 could address the "downstream" aspect of this crime. Number 1726 MR. LUCKHAUPT noted that this is his intent with drafting HB 125 in this fashion. "It comes up a lot as to how far down we provide the criminal penalty," he added. If the initial picture was taken legally and then stolen, he asked do we then impose criminal conduct for the person that acquires the tape - maybe through five or six different people down the line - and then broadcasts it? He noted that in this example it would be easier to impose a civil liability rather than a criminal liability on a person who may not be aware that this picture was not taken with the consent of the subject. It becomes very hard to have a successful criminal prosecution at that point. He said he was trying to stop the criminal liability at some reasonable point, and he'd chosen it to be with the person who is doing the viewing or taking the picture, and then letting the civil proceeding sort everything else out. REPRESENTATIVE COGHILL said he'd struggled with it because he has been surreptitiously viewing people in his job as a teacher, as a matter of course, for years; he said he oftentimes would surreptitiously watch his substitute teachers and other people as they interact with children at the school. He added that had anyone ever "got crossways" and wanted to sue him for this activity, he would have been in trouble. He noted that although he did this as a matter of safety, it could be argued that it wasn't. CHAIR ROKEBERG said he thinks that this is entirely proper conduct, and that a lot of the business community - in both public and private sectors - also have the legitimate right to oversee people and their activities. MR. LUCKHAUPT, on the example given by Representative Coghill, said that observing a person in the school simply by standing in the public hall off to the side of the doorway would not be considered surreptitious as compared to using a peephole designed for that purpose, which might be, and maybe should be, subject to some sort of liability. He added that it is all going to depend on the quality of how the person undertakes the viewing, for example, if that person is doing it from the bushes - like a peeping Tom - and observing someone inside who can't protect himself/herself from that. He noted that Alaska does not currently have a peeping Tom statute; HB 125 could become the peeping Tom statute, he added. REPRESENTATIVE COGHILL suggested that the phrase "with the expectation of privacy" should be incorporated into [subsection (a) of Section 2], because there are going to be times when a person is going to be in a room that he/she expects will be private, and there will be times when that expectation won't be present. And if a person has made reasonable efforts to be private, he opined, then that person should have [the protection of that privacy]. Number 1947 MR. LUCKHAUPT reminded [the committee] that the phrase "expectation of privacy" is rather nebulous and has different meanings to different people; he said he would try to create something in a committee substitute that will reflect what a reasonable person would expect, which is often done in criminal law as well as in a civil context. He noted, however, that when possible, [drafters] try to get a little more definition in place when something pertains to the criminal area; this is why he'd used the terms "in a room" and "surreptitious" to try to express the concept that someone observed under those circumstances does have an expectation of privacy. Mr. Luckhaupt spoke at length on the topic of drug tests for employees as it pertained to the expectation of privacy, and then said he would try to craft appropriate language according to the committee's instructions. CHAIR ROKEBERG reiterated his suggestions for a committee substitute. REPRESENTATIVE COGHILL asked whether "image," under the definition of "picture" in Section 4 applied only to actual people or also applied to manufactured images of people. MR. LUCKHAUPT said that the definition of "image,", which will also apply to the existing law regarding indecent viewing, is intended to apply to representations that are now being created in different ways. CHAIR ROKEBERG commented that perhaps a definition of "undergarments" might be in order so that it is clear that it excludes T-shirts. REPRESENTATIVE COGHILL, on a possible amendment, suggested that [subsection (d)(2)], pertaining to journalists, be tied to the "journalists code." CHAIR ROKEBERG announced that HB 125 would be held over.
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