Legislature(2001 - 2002)
04/18/2001 01:32 PM House JUD
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* first hearing in first committee of referral
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HB 125 - UNLAWFUL VIEWING Number 2456 CHAIR ROKEBERG announced that the committee would next take up 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 2482 REPRESENTATIVE JAMES made a motion to adopt the proposed committee substitute (CS) for HB 125, version 22-LS0510\C, Luckhaupt, 4/10/01, as a work draft. Number 2488 REPRESENTATIVE BERKOWITZ objected for the purpose of clarifying the changes proposed by Version C. CHAIR ROKEBERG called an at-ease from 2:19 p.m. to 2:20 p.m. TAPE 01-64, SIDE B Number 2486 HEATHER M. NOBREGA, Staff to Representative Norman Rokeberg, House Judiciary Standing Committee, Alaska State Legislature, explained that Version C adds language to Section 2, page 2, that reads: (a) A person commits the crime of improper viewing or photography if the person knowingly and surreptitiously views or produces a picture of or knowingly employs a hidden or concealed camera, peephole, or two-way mirror to view or produce a picture of another person in the interior of a residence or domicile without the knowledge or consent of .... MS. NOBREGA noted that this change attempts to more accurately reflect the purpose of HB 125, and should clarify that hallways and other areas of a home that are not specifically part of "a room" would be covered under this provision. She went on to explain that Section 2, subsection (d)(1), now stipulates that either of the following can be an affirmative defense: that notice of the viewing [or] photography was posted, or that [any viewing or use of pictures produced] is done only in the interest of crime prevention or prosecution. She also explained that the wording regarding [an affirmative defense for] journalists has been altered in subsection (d)(2) of Section 2. Number 2394 DENISE HENDERSON, Staff to Representative Pete Kott, Alaska State Legislature, explained that the complete change to subsection (d)(2) initially proposed by Representative Coghill was not incorporated into Version C by the drafter. She added that the sponsor has no objections to this change, now called Amendment 1, which read [original punctuation provided]: Page 2, line 24, after the words "by a professional journalist": Delete: "employed by a legitimate news-gathering organization for an actual or intended news story" Insert: who is a member in good standing of the Society of Professional Journalists performing journalistic duties in accordance with the Society of Professional Journalists' principles and standards of practice. Number 2351 JERRY LUCKHAUPT, Attorney, Legislative Legal Counsel, Legislative Legal and Research Services, Legislative Affairs Agency, speaking as the drafter, explained that the revisor had concerns about whether the Society of Professional Journalists referred to in Amendment 1 has any exclusions, and is thus a closed group, or is open to any professional journalists. CHAIR ROKEBERG mentioned that the language proposed by Amendment 1 certainly narrows the definition. MS. HENDERSON remarked that the concern raised by Mr. Buttcane regarding viewing and photography conducted by personnel of medical or psychiatric care facilities could be addressed by another amendment. MS. NOBREGA explained that such an amendment would not be necessary because HB 125 only applies to residences and domiciles. Number 2239 CHAIR ROKEBERG asked whether there were any further objections to the adoption of Version C as a work draft. There being no objection, Version C was before the committee. Number 2225 REPRESENTATIVE COGHILL made a motion to adopt Amendment 1. Number 2217 CHAIR ROKEBERG objected. He then noted that with the adoption of Version C as a work draft, proposed Amendment 1 now addresses language on page 2, lines 25-27, and added that it makes the distinction between journalists who are members of the Society of Professional Journalists as opposed to journalists who are merely employed by a legitimate news-gathering organization. REPRESENTATIVE JAMES asked where tabloids fit in. REPRESENTATIVE COGHILL remarked that he had wanted to address the issue of tabloid journalists via Amendment 1. CHAIR ROKEBERG pointed out that a journalist might be a member of the Society of Professional Journalists and be employed by a tabloid, and that tabloids might be considered legitimate news- gathering organizations; thus neither the current language in Version C nor proposed Amendment 1 really addresses this issue. REPRESENTATIVE JAMES concurred that the latter could well be true, but that the former might only perhaps be true. REPRESENTATIVE OGAN opined that the entire Section 2 is probably unconstitutional; he said there is no harm in taking a picture of someone who is unaware that the photography is taking place. He then noted that he had a time constraint and was prepared to vote on the previous agenda item. CHAIR ROKEBERG recessed the hearing on HB 125 for the purpose of taking up HB 179 again. HB 125 - UNLAWFUL VIEWING Number 1911 CHAIR ROKEBERG reconvened the hearing on 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." [Before the committee was Version C, adopted as a work draft earlier in this same meeting, and proposed Amendment 1, the text of which has been included previously.] REPRESENTATIVE COGHILL, in defense of Amendment 1, offered the following statement from the organization itself: "The Society of Professional Journalists is the nation's largest broad-based journalism organization dedicated to [the] free practice of journalism and stimulating high standards of ethical behavior." Number 1827 RYNNIEVA MOSS, Staff to Representative John Coghill, Alaska State Legislature, on the point of who could be included in the Society of Professional Journalists, said that the only possibility for exclusion might be if the [Society of Professional Journalists] were to decide that a journalist doesn't qualify under its standards; she added that there is not even a membership fee to join this organization, simply an application process and a review by its board. REPRESENTATIVE KOOKESH asked how many Alaskans employed in the field of journalism belonged to the [Society of Professional Journalists]. MS. MOSS replied that quite a few did, and she added that an Alaskan, a professor at the University of Alaska Fairbanks (UAF), is a member of the board. REPRESENTATIVE COGHILL added that according to his information, every reporter of all the major newspapers, and all those reporting from Juneau, belonged to the [Society of Professional Journalists]. He suggested that under Amendment 1, the ethical standards of the [Society of Professional Journalists] will apply to the viewing and photographing conduct addressed in Section 2. REPRESENTATIVE JAMES indicated she is reluctant to include journalistic conduct of any type as an affirmative defense. REPRESENTATIVE BERKOWITZ said he objects to Amendment 1 and the whole of [paragraph] 2, which he opined amounts to the equivalent of government censorship of the press. He continued: Essentially, we're saying that it is only a defense, (A) if you're a member of this organization; [but] there might be many legitimate journalists who aren't. We're secondly saying that [they have] to be employed by a legitimate news-gathering organization; that would seem to fly in the face of organizations that perhaps might not be considered legitimate by some but are legitimate by others. ... We'd have problems with freelance journalists; we'd have problems with, say, high school journalists or college journalists. ... If we're going to make a journalistic exception, why don't we just say, "There's a journalistic exception," rather than trying to define who qualifies as a legitimate journalist and who doesn't. Number 1579 A roll call vote was taken. Representatives Coghill, Meyer, and James voted for Amendment 1. Representatives Berkowitz, Kookesh, and Rokeberg voted against it. Therefore, Amendment 1 failed by a vote of 3-3. Number 1562 REPRESENTATIVE COGHILL made a motion to adopt Conceptual Amendment 2, which would strike [subsection (d), paragraph (2)] from page 2, lines 25-27, and would remove any provisions for journalists of any kind to have an affirmative defense. REPRESENTATIVE BERKOWITZ surmised that Conceptual Amendment 2 would have a chilling effect on free speech. He pointed out that Section 2 of Version C simply addresses knowingly and surreptitiously viewing and/or photographing; if Conceptual Amendment 2 is adopted, it would be illegal, for example, to take pictures of 15-year-olds inside a sweatshop, as part of a news story. CHAIR ROKEBERG remarked that according to the sponsor's staff, the primary thrust of HB 125 is to prohibit the taking and producing of photographs for transmittal on the Internet. REPRESENTATIVE BERKOWITZ opined that language in Version C does not specifically say that. CHAIR ROKEBERG countered that language in Section 1 does address transmittal to another person. REPRESENTATIVE BERKOWITZ pointed out that language in Section 1 pertains to AS 09.68.150 and addresses civil liability, whereas the language in Section 2, which would be altered by adoption of Conceptual Amendment 2, pertains to AS 11.61.121, which criminalizes the activity therein. Hence, "we're just saying if you take a picture of a kid, in any circumstance, it's illegal," he added, and he noted that there are legitimate reasons why someone might wish to document particular circumstances regarding children. CHAIR ROKEBERG affirmed that Representative Berkowitz is correct: there is a distinction between Section 1 and Section 2 of Version C. REPRESENTATIVE BERKOWITZ noted additionally that Section 2 even precludes members of the legislature from photographing or viewing photographs of children under the age of 13 for legislative purposes such as changes to statutes related to child abuse. Number 1384 JERRY LUCKHAUPT, Attorney, Legislative Legal Counsel, Legislative Legal and Research Services, Legislative Affairs Agency, speaking as the drafter, countered that [Version C] does not exactly do that. He then explained that the criminal statute is narrower than the civil remedy section, and, further, that the criminal statute would make it illegal to employ a hidden or concealed camera, and to use that hidden or concealed camera, peephole, or two-way mirror to surreptitiously view a person without his/her consent. It doesn't have to be a child; it can be an adult, but consent has to be given. He added that if the viewing or photography involves a subject that is under the age of [16], then the parents [or guardians] have to consent to the activity. He also explained that the viewing or photographing has to occur [while the subject is] in the interior of a residence. MR. LUCKHAUPT offered that the affirmative defense provision for news-gathering organizations is intended to allow the use of hidden cameras - as are used in "60 Minutes" and similar television programs - for some purposes. He said he'd attempted to narrow this affirmative defense provision similar to New York's statute, which seemed, to him, to apply to legitimate news-gathering organizations. He noted that the burden of this provision falls on the person who chooses to view or photograph, without consent, another person [who is in the interior of a residence or domicile]. On the issue of whether the legislature has the right to engage in this activity, he opined that it did not have the authority; he did, however, acknowledge that law enforcement could obtain authority for such activity via a search warrant. He added that the scope of Version C has been narrowed per comments from the last hearing, and now includes "domicile", which allows for hotel rooms and the like. He noted that HB 125 no longer applies to places of business. REPRESENTATIVE BERKOWITZ asked Mr. Luckhaupt to discuss some of the First Amendment implications of [Version C]. Number 1162 MR. LUCKHAUPT said that there will always be First Amendment implications. He added that he can't say that the First Amendment allows a reporter "to go into your home, place a hidden camera in your home, and videotape you or your family." REPRESENTATIVE BERKOWITZ pointed out that there are a number of torts available when someone has taken peoples' images without their consent; he said that there are four, according to his recollection. MR. LUCKHAUPT confirmed that this was correct, and he said that [the torts] are encompassed within the general term of invasion of privacy. He added that there is also intentional infliction of emotional harm whenever a person captures someone's likeness and parades it all over. He explained that in the general concept of invasion of privacy, there is a general remedy; Section 1 of Version C is designed to provide a separate means of recovery for persons whose images have been captured. REPRESENTATIVE BERKOWITZ referred to a privacy protection bill that he had introduced. He recounted how opposition had arisen from community patrols who oftentimes used cameras to take pictures of people; because they are not official law enforcement, the pictures taken would be illegal under the provisions encompassed in Version C. MR. LUCKHAUPT affirmed that a person, even as part of a community patrol, would have no right to take pictures of someone in the interior of a residence or domicile, which can include hotel rooms. He acknowledged, however, that a subject out on the street is "fair game for everybody" with regard to being photographed or viewed. REPRESENTATIVE BERKOWITZ explained that his previous comments are related to the fact that part of his district encompasses Spenard, which has a lot of prostitution activity. He recounted how a lot of community patrols spend quite a bit of time documenting who the "Johns" are and taking pictures of them; some of those pictures taken are of people within a residence or domicile and are clearly done without the knowledge and consent of the "John" or the prostitute. He added that merely taking the pictures has a deterrent affect on prostitution. He reiterated that the activity of these community patrols would be precluded by passage of HB 125. CHAIR ROKEBERG said he is not so sure that Mr. Luckhaupt's analysis is correct. Number 0939 REPRESENTATIVE JAMES stressed that she did not want to give journalists the option of an affirmative defense to surreptitiously view or photograph children between the ages of 13 and 16, because she said she considered such a defense an affront to the right of privacy. REPRESENTATIVE KOOKESH asked Mr. Luckhaupt to voice his opinion on Conceptual Amendment 2, which would remove the affirmative defense provision for journalists. MR. LUCKHAUPT opined that a court would still infer some First Amendment rights for legitimate journalists engaging in legitimate activities in pursuit of a news story. He further opined that simply taking this provision out of Version C would not prevent a journalist from ever raising the issue of First Amendment rights as an affirmative defense. REPRESENTATIVE KOOKESH suggested that merely by having the removal of this provision on record it might be construed by prosecutors that journalists would no longer have any affirmative defense. MR. LUCKHAUPT countered that a journalist's rights under the First Amendment to the U.S. Constitution would "trump" any state law that is placed on the books. Therefore, if the First Amendment is read in such a way as to allow someone to videotape someone else in the manner prohibited by Version C, then the First Amendment right could still be raised as an affirmative defense. Number 0530 A roll call vote was taken. Representatives Meyer, James, Coghill, and Rokeberg voted for Conceptual Amendment 2. Representatives Berkowitz and Kookesh voted against it. Therefore, Conceptual Amendment 2 was adopted by a vote of 4-2. Number 0526 REPRESENTATIVE JAMES moved to report CSHB 125, version 22- LS0510\C, Luckhaupt, 4/10/01, as amended, out of committee with individual recommendations and the accompanying fiscal notes. Number 0518 REPRESENTATIVE BERKOWITZ objected and said he still has a number of questions about HB 125. He asked why Version C is limited to residences and domiciles, and why such places as offices, stores, and hospitals are not included. MR. LUCKHAUPT reported that Version C was drafted in this manner at the direction of the committee from the meeting held on 4/6/01. CHAIR ROKEBERG concurred that "we tightened the scope because there [were] concerns about business surveillance and what they were allowed ... to do under common law as far as looking at employees." Currently, Version C does not speak one way or another to the issue of a business's surveillance of its employees, he added. REPRESENTATIVE BERKOWITZ, after noting that Version C is limited to visual [reproductions], asked whether any thought has been given to expanding Version C to include audio [representations]. He opined that with the technology available, there is as great a danger of "audio peeping" as there is of "visual peeping." REPRESENTATIVE JAMES remarked that the activity that is being objected to - via HB 125 - is the viewing or photography, without their consent, of persons who are nude or clothed only in underwear. She opined that this activity does not lend itself to an audio format. REPRESENTATIVE BERKOWITZ offered that someone's privacy could still be invaded via audio methods. CHAIR ROKEBERG cautioned that the issue of audio activity is outside the scope of HB 125. REPRESENTATIVE BERKOWITZ argued that if there is a concern about prurient viewing, then there ought to also be some concern about prurient listening; if "we're" worried about invading the privacy of a couple's bedroom just by looking in through the window, "we" ought to worry about listening in through the window. CHAIR ROKEBERG suggested that Representative Berkowitz introduce a bill that covers that subject, because HB 125 does not cover it. REPRESENTATIVE BERKOWITZ remarked upon the tendency of his bills to not move [out of committee]. Number 0210 A roll call vote was taken. Representatives James, Coghill, Meyer, and Rokeberg voted to report CSHB 125, version 22- LS0510\C, Luckhaupt, 4/10/01, as amended, out of committee. Representative Berkowitz voted against it. Therefore, CSHB 125(JUD) was reported from the House Judiciary Standing Committee. REPRESENTATIVE BERKOWITZ served notice of reconsideration on his vote on reporting CSHB 125, version 22-LS0510\C, Luckhaupt, 4/10/01, as amended, out of committee. CHAIR ROKEBERG, after much heated discussion, ruled that notice of reconsideration is not appropriate at the committee level; thus CSHB 125(JUD) was reported from the House Judiciary Standing Committee.
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