Legislature(2005 - 2006)CAPITOL 120
03/02/2005 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB155 | |
| HB132 | |
| HB107 | |
| HB131 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 155 | TELECONFERENCED | |
| += | HB 132 | TELECONFERENCED | |
| += | HB 107 | TELECONFERENCED | |
| *+ | HB 131 | TELECONFERENCED | |
HB 131 - ACCESS DEVICE & I.D. DOCUMENT CRIMES 2:05:50 PM CHAIR McGUIRE announced that the final order of business would be HOUSE BILL NO. 131, "An Act increasing the criminal classification of theft of an access device and of obtaining an access device or identification documents by fraudulent means; increasing the criminal classification for certain cases of fraudulent use of an access device; and providing for an effective date." 2:06:05 PM BEN MULLIGAN, Staff to Representative Bill Stoltze, Alaska State Legislature, sponsor, relayed on behalf of Representative Stoltze that "access [identification (ID)] theft is a growing problem in Alaska" and nationwide; between 2002 and 2004, the number of complaints regarding access ID theft rose over 152 percent. Alaska currently ranks second [in the nation] in the number of complaints issued per 100,000 people. House Bill 131 proposes to increase the penalty, from a class A misdemeanor to a class C felony, for the theft of an access device, for the fraudulent use of an access devise, and for fraudulently obtaining an access device or identification document. The proposed changes are meant to provide deterrence and punishment for such crimes. 2:08:17 PM SAM TRIVETTE, AARP; President, Retired Public Employees of Alaska (RPEA), Alaska Public Employees Association/Alaska Federation of Teachers (APEA/AFT), after mentioning that he has been involved in the corrections industry for over 32 years, said his experience has shown him that it is clear that law enforcement resources are stretched to the "nth degree," and that when such is the case, if a crime is felony, it will get a lot much more attention than a misdemeanor. He relayed that at a recent seminar regarding identity theft, there was testimony by police officers acknowledging "how complicated this situation is and how much the impact is upon seniors, especially, who sometimes just don't understand the systems as they change over the years." He relayed that the AARP supports HB 131 because it thinks that by increasing the penalty for "this crime," the chances are much more likely that police will get involved and prosecute the crime. He noted that police have also relayed to him that since many ID theft crimes are committed by people in other states, if the crime is not a felony, law enforcement agencies in those other states will essentially "blow you off." Offering a personal example wherein his parents had items stolen by caretakers, he opined that there is a need for sending a strong message that law enforcement will use its best and strongest efforts to prosecute such crimes as felonies. 2:11:17 PM MICHELLE LOGAN, Detective, Anchorage Police Department (APD), Municipality of Anchorage (MOA), after noting that she has worked in the APD's fraud unit for the past three years, testified in support of HB 131. She relayed that during the past year and a half, she has seen a noticeable increase in the number of identity theft reports. Some of the reports involve crimes that are committed by perpetrators in Alaska, but often ID theft originates in other states. She mentioned that victims of ID theft have to spend a lot of time getting their credit reports "back on track." Most ID theft the APD sees involves credit card fraud, she remarked, adding that although HB 131 is not specifically an ID theft bill, if it is passed, it will greatly enhance the efforts of law enforcement to combat ID theft and will give the APD the tools with which to put together more meaningful cases for prosecution purposes. MS. LOGAN, with regard to comments by Mr. Trivette, said that it is not that law enforcement will "blow off" misdemeanor cases; rather, there are just limited resources with which to pursue misdemeanor cases. In fact, unless a crime is a felony, it doesn't even get referred to the "detective division." She indicated that she has experienced frustration when charging a person with fraudulent use of an access device when the crime is currently only a misdemeanor. She provided examples regarding credit card theft wherein multiple charges were made but individually the amounts being charged only warranted a misdemeanor. In conclusion, she opined that adoption of HB 131 will send a message that Alaska is serious about protecting its citizens against ID theft and is serious about prosecuting those that perpetrate crimes of ID theft. 2:16:23 PM JAY FOLEY, Co-Executive Director, Identity Theft Resource Center (ITRC), relayed that the ITRC works one on one with victims of identity theft in assisting them in clearing their names, from the simple cases of credit card "skimming" and fraud, to the most complicated criminal identity theft cases. Any and all enhancement of penalties dealing with the subject of identity theft will be a welcome relief, he remarked; all too frequently, law enforcement agencies are taxed too greatly to pursue these cases, and when they are fortunate enough to pursue them, it is almost a mockery to the victim to have the court system rule that the crime is a minor misdemeanor. MR. FOLEY said that in the instances when a perpetrator does go to court, he/she should face tougher penalties, which should act as a deterrent to future identity thieves. Referring to a study the ITRC released in 2003 regarding the aftermath of identity theft, he said it indicates that on average, a victim will spend about 600 hours cleaning up the mess left by the thief, will incur up to $1,400 in expenses not including legal fees, and will suffer from a wide range of emotional issues because of the betrayal and a lack of support. He said that identity theft victims in Alaska are imploring the legislature's consideration of HB 131. 2:19:09 PM REPRESENTATIVE GARA asked whether there are laws that prevent the cardholder of a stolen credit card from being held liable for the charges incurred by the thief. MR. FOLEY said yes. Under the Fair Credit Reporting Act and other federal laws, a cardholder is only responsible for the first $50 of loss. A caveat, however, is that this limitation only applies if the cardholder reports the theft promptly, so if the cardholder doesn't notice the theft within a certain number of days or fails to report it within that time period, then he/she will become responsible for all charges. REPRESENTATIVE GARA asked whether federal law preempts states from regulating "that area," from saying that cardholders are not responsible for credit card debt incurred without consent. MR. FOLEY, although offering his belief that states would be preempted from such, recommended that the legislature speak with counsel of the Federal Trade Commission (FTC) further on that issue. STEVE CLEARY, Executive Director, Alaska Public Interest Research Group (AkPIRG), opined that others have summed up "the great merits" of HB 131, and relayed that the AkPIRG has been trying to get more identity theft protections instituted in the wake of the [recent] ChoicePoint Inc. security breach, which resulted in nearly 150,000 consumers having their personal information stolen. He mentioned that ChoicePoint had its security breached several years ago as well, but never notified those who became victims of identity theft because of it. He raised the issue of possible amendments, for either this bill or another, that would require mandatory notification when security breaches occur and that would allow consumers to place a security freeze on their account information. He mentioned that the AkPIRG is hopeful that such changes to current law will be made, and opined that HB 131 is a good first step in the direction [of consumer protection]. 2:23:09 PM LINDA WILSON, Deputy Director, Central Office, Public Defender Agency (PDA), Department of Administration (DOA), said she agrees with some of the prior comments regarding the importance of and concerns over identity theft. She said that when she considers identity theft, she is thinking of what she called "true identity and credit card theft," wherein a stranger comes along and takes on another's identity. She mentioned a concern regarding familial situations wherein a family member is using or taking another family member's credit card or check, noting that even if such were not used, just the taking of either item could result in a felony charge. MS. WILSON then raised the issue of fake IDs. She referred to Section 4, which makes obtaining an access devise or identification document by fraudulent means a class C felony, and noted that AS 11.81.900(b)(30) defines an identification document as: "identification document" means a paper, instrument, or other article used to establish the identity of a person; "identification document" includes a social security card, driver's license, non-driver's identification, birth certificate, passport, employee identification, or hunting or fishing license MS. WILSON noted that under the aforementioned definition and Section 4 of the bill, minors who acquire fake IDs will be exposed to felony prosecution because they have used fraudulent means to obtain an ID. 2:26:14 PM REPRESENTATIVE COGHILL remarked that Ms. Wilson raised a good point. He mentioned that sometimes in domestic situations, people might be fighting over a checkbook, and questioned whether a check would be considered an identification document. MS. WILSON offered her belief that a check is an identification document. REPRESENTATIVE COGHILL posited, then, that an unintended consequence in domestic dispute situations involving arguments over a checkbook could be that one of the parties gets charged with a felony. He suggested that the committee might want to eliminate that potential. RANDY RUARO, Assistant Attorney General, Legislation & Regulations Section, Office of the Attorney General, Department of Law (DOL), pointed out, however, that in domestic dispute situations involving joint bank accounts, both parties have a right to have the checks. Additionally, if a domestic dispute didn't involve a joint bank account, before one of the parties can be charged with identification theft, local law enforcement would have to agree to investigate and to make the arrest. At that point, the prosecutor could exercise his/her discretion to charge the person at the felony level or at some "lesser included" level. He acknowledged that Representative Coghill has a valid concern, but surmised that the prosecutor's discretion would provide a filter before a party in a domestic dispute situation actually gets charged with a felony; also, a jury would have to convict at the felony level, and the judge would still retain the discretion to fashion an appropriate sentence. 2:29:58 PM REPRESENTATIVE GARA said he didn't think that the legislature should pass laws and at the same time be hoping that the prosecution won't enforce those laws. He also said he is not sure that if the law specifies that certain behavior constitutes a felony, that prosecutors have the discretion to charge the person with a misdemeanor. MR. RUARO offered his understanding that other statutes could be used when the prosecutor doesn't want to charge someone with a felony; for example, a person could be charged with "a simple theft" or with some other type of lesser offense. Acknowledging Representative Gara's concern, he suggested that John Skidmore, Department of Law (DOL), could better address this issue. REPRESENTATIVE GARA offered his understanding that when "a plea deal" is proposed to the judge, he/she has to determine whether the deal makes sense in light of the known facts, and so if the law specifies that a situation involving a check, for example, constitutes a felony, then it would be hard for the judge to ignore the fact that the situation did involve a check and allow a person to be charged differently. 2:32:21 PM ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), mentioned that when she was a prosecutor, there were domestic dispute cases wherein people wanted "the prosecution to deal, in a criminal manner, with issues that were really domestic issues," and prosecutors did have the authority not to prosecute, and so did exercise that authority in such cases. She also offered her belief that a check would not be considered an identification document under the aforementioned definition; although a check has commercial value, it is not a document that one can use to establish identification. CHAIR McGUIRE noted that Section 3 refers to an access device, which is defined in AS 11.81.900(b)(1) as: "access device" means a card, credit card, plate, code, account number, algorithm, or identification number, including a social security number, electronic serial number, or password, that is capable of being used, alone or in conjunction with another access device or identification document, to obtain property or services, or that can be used to initiate a transfer of property CHAIR McGUIRE noted that Section 4 refers to both access devices and identification documents, and read from AS 11.81.900(B)(30) [text provided previously] which defines an identification document. 2:34:53 PM REPRESENTATIVE GARA said he still has a concern that the prosecution won't be able to charge situations involving fraud by credit card, for example, differently than is being proposed in the bill. MS. CARPENETI pointed out, however, that "most of these" cases are "plead out," and that the DOL has not, to date, experienced any problems negotiating pleas on property crimes of "this" nature. She said that because there are so many creative ways for the judge and prosecutor to reach a just result, she is not worried about problems arising. She, too, suggested that Mr. Skidmore could better address this issue. REPRESENTATIVE COGHILL asked how would one go about determining whether someone has obtained an access device; he indicated that he wants to know how "obtaining" becomes a felony. MS. CARPENETI offered a personal example wherein her purse was stolen, calling such [trespassory] taking, and also referred to an example wherein the perpetrator gets someone's personal information by going through his/her garbage. REPRESENTATIVE COGHILL said that although he understands [how the law would apply in cases involving] "regular thievery," he is not sure he understands [how it would apply in cases involving] what he called "high-tech thievery," such as when people are talked into willingly providing personal information. Could there be some argument that such information, if given willingly, wasn't obtained through deception? MS. CARPENETI said it would depend on what the people seeking the information told the person they were getting the information from, and again suggested that Mr. Skidmore could better address this issue. 2:39:08 PM CHAIR McGUIRE, using hypothetical examples, recapped members' concerns for Mr. Skidmore. 2:40:20 PM JOHN B. SKIDMORE, Assistant District Attorney, Third Judicial District (Anchorage), Department of Law (DOL), after mentioning that his duties include supervising the "property unit" and relaying that his past experience includes prosecuting for the DOL in other areas of the state, he said that the easiest way to resolve a case at a lower level - to reduce a felony to a misdemeanor - is to charge someone for an attempted crime; for purposes of HB 131, doing so would allow the prosecution to reduce the charge to a class A misdemeanor. There are also varying levels of theft, he noted, and so it would be easy - even in cases involving amounts over $500 - to simply charge someone with theft in the third degree or with theft in the fourth degree, instead of with theft in the second degree as proposed in the bill; he noted that every day he resolves cases involving theft of amounts over $500 as misdemeanors. Such is the real world discretion that prosecutors have. MR. SKIDMORE noted, with regard to the issue of prosecuting a family member for taking a check, that a check is not included in the statutory definition of an identification document, and said that he cannot imagine a situation in which one would use a check as a form of identification. Instead, a check is statutorily defined as an access device; additionally, if someone improperly uses a check, the bill won't apply because such situations are already addressed by the laws pertaining to forgery. He pointed out that children steal their parents' checks all the time, and the prosecution has the discretion, and often uses it, to determine whether it is appropriate to prosecute someone in such cases under the existing [forgery and theft] statutes. He offered his understanding that in order for proposed AS 11.46.290(b) to apply, the person obtaining the access device or identification document must do so with the intent to defraud, and so elements other than merely taking an access device or identification document must be taken into consideration. MR. SKIDMORE said he would echo prior testimony by the DOL representative regarding discretion, which he opined, is built into the criminal justice system in multiple layers. There must first be enough evidence for the police to want to move forward with a case and refer it to the prosecutor's office; the prosecutor then uses discretion in determining whether it is appropriate to charge a particular case and thus use up state resources in seeking a criminal sanction against someone; and the checks and balances on the police and prosecutor come from juries and judges. In the occasional instances where familial context cases are prosecuted, it is because they are just as serious as all other theft cases or because the parents really think there is a need for a child to be prosecuted; for example, if the child has a drug addiction and can't be caught with the drugs but can be charged with another felony offense, then the child could be sentenced to probation only, with mandatory drug treatment as a condition of probation. 2:46:51 PM REPRESENTATIVE COGHILL indicated that Mr. Skidmore's comments alleviate his concerns, and said he agrees with the intent of bill. However, the bill proposes to make it a class C felony if the value obtained from the use of the access device is $50 or more. This would seem to make it easier to become a felon, which has many repercussions. He asked whether using an access device for several purchases under $50 would result in separate criminal charges or whether the purchases combined would result in a single criminal charge. MR. SKIDMORE noted that existing AS 11.46.980(c) says, "In determining the degree or classification of a crime under this chapter, amounts involved in criminal acts committed under one course of conduct, whether from the same person or several persons, shall be aggregated." He opined that this means that it would have to be shown that the multiple acts were all in one course of conduct as opposed to several courses of conduct. He characterized this as a fact-driven question, adding, "We do often aggregate those types of cases, but you have to have the appropriate facts that [show] it was all in one course of conduct." REPRESENTATIVE COGHILL opined that $50 seems too low, and asked why they should lower the threshold for this particular felony crime to that amount. MR. SKIDMORE opined that identity theft is much more insidious than "a straight" theft. For example, with a theft occurs wherein a person steals an item or items from a store, the offense ends when the perpetrator is caught - there are no more repercussions to the victim from that theft. In contrast, when an identity theft occurs, the consequences for the victim are ongoing. He relayed that he'd recently heard someone on the radio say that if one becomes the victim of identity theft, he/she can be told: "Congratulations, you've just gotten a new part time job; you will now spend countless hours trying to fix your credit history and protect yourself," For some folks, dealing with creditors and other people results in a tremendous amount of trauma. He relayed an example from three years ago wherein a woman living in Los Vegas had her identity stolen by people who came to Alaska and started buying things; the woman lost promotion opportunities and ultimately her job because she missed days at work trying to deal with her creditors, and had to undergo psychological counseling. And although such repercussions may not occur when someone is only defrauded of $50-$75, the insidious nature of identity theft warrants lowering the threshold to $50, he opined. REPRESENTATIVE COGHILL said that a $50 threshold for a felony is "pretty low for me." CHAIR McGUIRE, after ascertaining that no one else wished to testify, closed public testimony on HB 131. 2:52:36 PM REPRESENTATIVE DAHLSTROM moved to report HB 131 out of committee with individual recommendations and the accompanying fiscal notes. REPRESENTATIVE GARA objected for the purpose of discussion. He said that he too is struggling with the proposed $50 threshold, and noted that although the hope is that the increased penalty will act as a deterrent, those that commit crimes don't read statutes. CHAIR McGUIRE asked whether he had a different threshold in mind. REPRESENTATIVE GARA indicated that he did not, at this time. CHAIR McGUIRE mentioned that the bill has a House Finance Committee referral. REPRESENTATIVE GARA asked whether there are any other felonies with a $50 threshold. CHAIR McGUIRE said she did not think that there were, and surmised that Mr. Skidmore's testimony indicated that one is being proposed in the bill because of the insidious nature of identity theft. REPRESENTATIVE COGHILL mentioned that he is working on a bill that will be addressing all felonies. 2:55:38 PM REPRESENTATIVE KOTT said he shares some of the same concerns that Representatives Gara and Coghill have expressed. Referring to the argument that the crime the bill addresses is insidious, he noted that the same argument could be made even if the threshold were being lowered to $10, but people would still face the same consequences associated with a felony that has a $50 threshold. He indicated that he would go along with an amendment to raise the proposed threshold above $50. CHAIR McGUIRE noted that the current threshold for [the felony level crime of fraudulent use of access device] is $500. REPRESENTATIVE COGHILL said that the "aggregated amount" was what he was looking for. He offered his understanding that most fraudulent uses of access devices probably involve amounts much more significant than $50. He mentioned that he himself has had to deal with this issue and, thus, he is sympathetic. However, he relayed, he is also very cautious about creating a situation whereby somebody becomes a felon over a $75 charge, since that will result in repercussions for that person. He mentioned that he is getting some comfort from the fact that fraudulent use must be proven before a person can be convicted of a felony, but that's the only comfort he is getting. CHAIR McGUIRE relayed to Mr. Mulligan that members appear to be struggling with the proposed threshold amount. MR. MULLIGAN noted that even though a person stealing a credit card might only charge $50 worth of merchandise or services, there is the potential for that person to charge the maximum the credit card will allow. With regard to the issue of altering the proposed threshold, he surmised that the sponsor would like some time to research the issue to determine an appropriate amount. REPRESENTATIVE DAHLSTROM withdrew her motion to move bill. 3:01:04 PM REPRESENTATIVE DAHLSTROM said she shares the concerns raised regarding the proposed threshold. She noted, however, that there are consequences to having one's access devices and identity documents stolen, some of which could include not being able to close on a house or to lose a job. She mentioned that she has had someone else's credit information show up on her credit report, and that it took her two years to clear up the situation. CHAIR McGUIRE relayed her personal experience regarding someone's fraudulent use of her debit card. She indicated that although there is a policy call to make on this issue, there are concerns with the bill that still need to be addressed. She suggested that perhaps the sponsor could research what other states do, and perhaps consider proposing a different threshold amount. REPRESENTATIVE GARA surmised that the insidiousness of stealing someone's access device stems from the potential to keep using it, so perhaps members' concerns regarding the $50 threshold could be addressed via aggregating the amounts of repeat usage. REPRESENTATIVE GRUENBERG relayed his personal experiences regarding the fraudulent use of his credit card by an unknown person and the attempted misuse of his credit card by a family member. He said he is wondering what else is being done to protect the consumer and address identity theft more thoroughly. He asked where the crime is committed if a citizen of Alaska has his/her credit card used fraudulently in California; he indicated his assumption that such a crime would have been considered as having been committed in California. [Following was a brief discussion about which other bills, currently and in the past, have pertained to credit card companies and to fraud.] [HB 131 was held over.]
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