03/23/2011 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB87 | |
| HB23 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 87 | TELECONFERENCED | |
| *+ | HB 23 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 6 | TELECONFERENCED | |
| += | HB 168 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 23, 2011
1:39 p.m.
MEMBERS PRESENT
Representative Carl Gatto, Chair
Representative Steve Thompson, Vice Chair
Representative Bob Lynn
Representative Lance Pruitt
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
Representative Wes Keller
Representative Mike Chenault (alternate)
COMMITTEE CALENDAR
HOUSE BILL NO. 87
"An Act relating to penalties for antitrust violations."
- MOVED CSHB 87(L&C) OUT OF COMMITTEE
HOUSE BILL NO. 23
"An Act relating to criminal use of a computer."
- HEARD & HELD
HOUSE BILL NO. 6
"An Act authorizing the governor to remove or suspend a member
of the Board of Regents of the University of Alaska for good
cause; and establishing a procedure for the removal or
suspension of a regent."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 168
"An Act requiring the amount of the security given by a party
seeking an injunction or order vacating or staying the operation
of a permit affecting an industrial operation to include an
amount for the payment of wages and benefits for employees and
payments to contractors and subcontractors that may be lost if
the industrial operation is wrongfully enjoined."
- BILL HEARING CANCELED
PREVIOUS COMMITTEE ACTION
BILL: HB 87
SHORT TITLE: ANTITRUST VIOLATION PENALTIES
SPONSOR(S): REPRESENTATIVE(S) OLSON, HOLMES
01/18/11 (H) PREFILE RELEASED 1/14/11
01/18/11 (H) READ THE FIRST TIME - REFERRALS
01/18/11 (H) L&C, JUD
02/28/11 (H) L&C AT 3:15 PM BARNES 124
02/28/11 (H) Scheduled But Not Heard
03/07/11 (H) L&C AT 3:15 PM BARNES 124
03/07/11 (H) Moved CSHB 87(L&C) Out of Committee
03/07/11 (H) MINUTE(L&C)
03/09/11 (H) L&C RPT CS(L&C) NT 4DP 2NR
03/09/11 (H) DP: THOMPSON, HOLMES, MILLER, OLSON
03/09/11 (H) NR: CHENAULT, JOHNSON
03/23/11 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 23
SHORT TITLE: COMPUTER PRIVACY
SPONSOR(S): REPRESENTATIVE(S) PETERSEN, HOLMES
01/18/11 (H) PREFILE RELEASED 1/7/11
01/18/11 (H) READ THE FIRST TIME - REFERRALS
01/18/11 (H) JUD, FIN
03/23/11 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JAMES R. WALDO, Staff
Representative Lindsey Holmes
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 87 on behalf of one of the
bill's joint prime sponsors, Representative Holmes.
CLYDE (ED) SNIFFEN, JR., Senior Assistant Attorney General
Commercial/Fair Business Section
Civil Division (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 87.
REPRESENTATIVE PETE PETERSEN
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 23 as one of the bill's joint
prime sponsors.
DAVID BREMER, Staff
Representative Pete Petersen
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Assisted with the presentation of HB 23 on
behalf of one of the bill's joint prime sponsors, Representative
Petersen.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Suggested changes to HB 23 and responded to
questions.
GERALD LUCKHAUPT, Assistant Revisor of Statutes
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency (LAA)
Juneau, Alaska
POSITION STATEMENT: Speaking as the drafter, responded to
questions during discussion of HB 23.
QUINLAN STEINER, Director
Central Office
Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Expressed concerns with Section 2 of HB 23.
ACTION NARRATIVE
1:39:48 PM
CHAIR CARL GATTO called the House Judiciary Standing Committee
meeting to order at 1:39 p.m. Representatives Gatto, Thompson,
Gruenberg, Holmes, and Lynn were present at the call to order.
Representative Pruitt arrived as the meeting was in progress.
HB 87 - ANTITRUST VIOLATION PENALTIES
1:40:07 PM
CHAIR GATTO announced that the first order of business would be
HOUSE BILL NO. 87, "An Act relating to penalties for antitrust
violations." [Before the committee was CSHB 87(L&C).]
1:40:39 PM
JAMES R. WALDO, Staff, Representative Lindsey Holmes, Alaska
State Legislature, on behalf of Representative Holmes, one of
the bill's joint prime sponsors, explained that HB 87 would
update the penalties for certain violations of Alaska's
antitrust laws. Currently, violations of AS 45.50.562 and AS
45.50.564 - combinations in restraint of trade unlawful, and
monopolies and attempted monopolies unlawful, respectively -
constitute a misdemeanor with a maximum fine of $20,000, or a
maximum prison sentence of one year, or both, if committed by a
natural person, and constitute a misdemeanor with a maximum fine
of $50,000 if committed by an entity other than a natural
person. By amending AS 45.50.578, Section 1 of the bill would
make such violations a class C felony with a maximum fine of
$1,000,000, or a prison sentence as provided for in AS 12.55, or
both, if committed by a natural person, and a class C felony
with a maximum fine of $50,000,000 if committed by an entity
other than a natural person. Section 2 of the bill would add a
new subsection (b) to AS 45.50.578 authorizing civil actions by
the attorney general against those who violate AS 45.50.562; AS
45.50.564; AS 45.50.568 - mergers and acquisitions unlawful when
competition unlawful; AS 45.50.570 - interlocking directorates
and relationships; or an injunction issued under AS 45.50.580 -
injunction by attorney general. The maximum civil penalty
authorized under this new subsection (b) would be $1,000,000 for
a violation committed by a natural person, and $50,000,000 for a
violation committed by an entity other than a natural person.
MR. WALDO mentioned that the joint prime sponsors obtained input
from the Department of Law (DOL) regarding the bill's language;
that the proposed penalties are far less than those imposed for
violating [similar federal law]; that the proposed penalties are
merely maximum amounts, rather than mandatory amounts, and so
the court would have the same discretion under the bill as it
has now in determining how high a penalty to impose; and that
making the bill's civil penalty section congruent with its
criminal penalty section is meant to ensure that if the state is
one of the prevailing parties in a multi-state antitrust suit,
that the damages awarded the state won't be limited to just its
existing criminal penalty amounts.
1:45:20 PM
CLYDE (ED) SNIFFEN, JR., Senior Assistant Attorney General,
Commercial/Fair Business Section, Civil Division (Anchorage),
Department of Law (DOL), in response to questions, concurred
that the proposed penalty amounts would be maximum amounts, not
mandated amounts, and that damage award amounts in multi-state
antitrust cases hinge on a state's existing penalties; ventured
that the bill's proposed changes would provide the DOL with the
flexibility and strength to pursue "bigger" cases; and explained
that the bill would apply to the person/entity that commits the
wrongdoing and not necessarily to a parent company, subsidiary
company, or other affiliated company unless such was actually
responsible for the conduct, that he is not aware of anything
illegal going on in Alaska with regard to gasoline pricing, and
that although there are a few "local" antitrust investigations
underway, most of the DOL's antitrust investigations pertain to
multi-state antitrust cases. For example, currently the state
is involved in a multi-state case involving shipping, one
involving liquid crystal displays (LCDs), and one involving
computer memory chips.
REPRESENTATIVE GRUENBERG, in response to comments and a
question, noted that AS 01.10.060(a)(8) defines the word,
"person" as:
(8) "person" includes a corporation, company,
partnership, firm, association, organization, business
trust, or society, as well as a natural person;
CHAIR GATTO, after ascertaining that no one else wished to
testify, closed public testimony on HB 87.
1:58:39 PM
REPRESENTATIVE HOLMES, speaking as one of HB 87's joint prime
sponsors, moved to report CSHB 87(L&C) out of committee with
individual recommendations and the accompanying fiscal notes.
There being no objection, CSHB 87(L&C) was reported from the
House Judiciary Standing Committee.
The committee took an at-ease from 1:59 p.m. to 2:02 p.m.
HB 23 - COMPUTER PRIVACY
2:02:30 PM
CHAIR GATTO announced that the final order of business would be
HOUSE BILL NO. 23, "An Act relating to criminal use of a
computer."
2:03:00 PM
REPRESENTATIVE PETE PETERSEN, Alaska State Legislature, speaking
as one of the bill's joint prime sponsors, explained that HB 23
would update Alaska's statutes regarding criminal use of a
computer - AS 11.46.740 - in order to keep up with new
technology such as keyboard loggers, devices which record
keystrokes as they are being entered into a computer.
Specifically, Section 1 of HB 23 - amending AS 11.46.740(a) -
would make it a crime for a person to install a keystroke logger
or other device or program that has the ability to record
someone else's keystrokes or entries - whether transmitted
wirelessly or not - in order to access information that the
person has no right to. Currently, obtaining someone's personal
information via software or "spyware" is illegal, but not when
done via the use of a keystroke logger, and HB 23 would [fix
this loophole].
2:04:51 PM
DAVID BREMER, Staff, Representative Pete Petersen, Alaska State
Legislature, on behalf of Representative Petersen, one of
HB 23's joint prime sponsors, additionally offered his
understanding that some new technology can enable a person to
record someone else's keystrokes from as far away as 100 yards.
In response to questions, he assured the committee that the bill
wouldn't apply to law enforcement, and noted that the Alaska
Cabaret, Hotel, Restaurant, & Retailers Association (Alaska
CHARR) is in support of HB 23.
REPRESENTATIVE PETERSEN mentioned that in addition to protecting
the personal information of individuals, the bill would also
protect the proprietary information of businesses.
MR. BREMER, in response to questions, said that although a
person using a keystroke logger to steal information wouldn't
necessarily know the context of the keystrokes that were
recorded, he/she could look for common patterns such as 16
numeric keystrokes in a row, possibly indicating a credit card
number, or some alphabetic keystrokes that include letters
spelling "gmail.com", possibly indicating an e-mail account; and
offered his understanding that there is not yet a way to steal
information entered on a computer via touchscreen technology.
2:09:12 PM
REPRESENTATIVE THOMPSON expressed concern that the affirmative
defense provided for via Section 2 of the bill could be misused
by perpetrators of domestic violence (DV) who install a
keystroke logger on their home computers in order to obtain
information entered by their victims. He questioned whether
this provision - which would add a new subsection (d) to AS
11.46.740 - would conflict with [Alaska's DV laws, either
existing or proposed].
MR. BREMER - noting that without passage of the bill, anyone,
even a perpetrator of DV, can use a keystroke logger to obtain
information he/she has no right to - explained that Section 2 of
the bill was included so as to address instances in which
parents install a keystroke logger on their home computer in
order to monitor what their children are doing on it. He
offered [his understanding that the joint prime sponsors] would
not be opposed to amending the bill [to address the concern
about perpetrators of DV]. In response to comments, he
mentioned that in addition to keystroke loggers that obtain
information remotely, there are also ones that attach to the
computer itself, looking much like a simple cable extension, and
thus a person would have to inspect the wiring on his/her
computer prior to every use in order to ensure that no such
device had been installed. Keyboard loggers are readily
available over the Internet, and range in price from $50-$200,
he added.
REPRESENTATIVE PRUITT asked whether HB 23 would impact companies
that use such technology to monitor their employees.
MR. BREMER relayed that it wouldn't because companies have the
right to access information on the computers they own. In
response to other questions, he clarified that Section 2 of HB
23 provides an affirmative defense for those installing or
enabling a keystroke logger on their own computer, and explained
that the bill's current title - "An Act relating to criminal use
of a computer." - was chosen because the catch line of the
section of statute being amended is, "Criminal use of computer."
REPRESENTATIVE GRUENBERG suggested that the joint prime sponsors
consider narrowing the title in order to ensure that [unrelated]
provisions aren't added to the bill.
REPRESENTATIVE PETERSEN indicated that narrowing the title to
that effect would be fine with him.
2:19:51 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), suggested
dividing the language of proposed AS 11.46.740(a)(2) into two
parts in order to clarify that this new language is addressing
both the installation of hardware/software, and the accessing of
information remotely, and suggested deleting Section 2 as being
unnecessary, since the State would already have to prove beyond
a reasonable doubt that the person had no right to engage in the
proscribed behavior. She noted, though, that Section 2 wouldn't
conflict with [Alaska's DV laws, either existing or proposed],
because it specifically says that application of its affirmative
defense is limited to prosecutions resulting from a violation of
AS 11.46.740(a)(2), and AS 11.46 addresses property crimes, not
crimes against a person. So if the committee chooses to retain
Section 2, the language should at least be changed to reflect
that it applies to both presently-owned and formerly-owned
computers.
CHAIR GATTO relayed that a proposed committee substitute (CS)
addressing the aforementioned concerns would be forthcoming.
REPRESENTATIVE GRUENBERG mentioned that he supports the bill.
2:28:19 PM
GERALD LUCKHAUPT, Assistant Revisor of Statutes, Legislative
Legal Counsel, Legislative Legal and Research Services,
Legislative Affairs Agency (LAA), speaking as the drafter of HB
23, relayed that he would draft language clarifying that what is
now proposed AS 11.46.740(a)(2) would address both the
installation of hardware/software, and the accessing of
information remotely; and that he would change the title. He
concurred that the title currently merely reflects the catch
line of the section of AS 11.46 being amended - a section
addressing computer crimes, both those committed against
individuals and those committed against businesses and other
entities; that the affirmative defense provided for via Section
2 would address situations in which parents wish to monitor
their children's computer activity, and situations in which a
company wishes to monitor its employees' computer activity; that
in a prosecution under AS 11.46.740(a)(2), the state would have
to prove that the person had no right to engage in the
proscribed behavior; and that Section 2 wouldn't conflict with
[Alaska's DV laws, either existing or proposed], because it
specifically says that its application is limited to
prosecutions resulting from a violation of AS 11.46.740(a)(2),
which addresses the wrongful use of keystroke loggers, not
domestic violence.
MR. LUCKHAUPT offered his belief, though, that Section 2 would
provide greater protection for someone who installs or enables a
keystroke logger on a computer that he/she owns. In response to
questions, he again pointed out that proposed AS 11.46.740(a)(2)
is intended to address both the installation of keystroke logger
hardware/software, and the accessing of keystroke information
remotely; offered his belief that HB 23 would fill a gap in the
state's laws pertaining to computers and their usage; and
explained that under the bill, the activity outlined in proposed
subsection (a)(2) would still be a crime regardless that the
person failed to actually obtain the information he/she was
seeking via the use of keystroke logger technology.
2:42:03 PM
QUINLAN STEINER, Director, Central Office, Public Defender
Agency (PDA), Department of Administration (DOA), expressed
concern that the affirmative defense provided for via Section 2
of HB 23 would place the burden on the defendant to prove, by a
preponderance of the evidence, that he/she owned the computer,
and this could be difficult to do. Also, Section 2 is confusing
because the affirmative defense relates to an element of the
offense itself, thereby obfuscating what the State would have to
prove. And although the best solution would be to eliminate
Section 2 altogether, as suggested by the DOL, another solution
might be to make lack of ownership an actual element of the
offense, thereby placing the burden on the State to prove that
the defendant didn't own the computer. Mr. Steiner also
concurred with Ms. Carpeneti that the language of proposed
AS 11.46.740(a)(2) ought to be divided into two parts in order
to provide clarity.
CHAIR GATTO, in response to comments, noted members' continuing
concern with Section 2 of HB 23.
REPRESENTATIVE PETERSEN, in response to a question, indicated
that the intent is for the bill to apply in situations where the
person committing the behavior outlined in proposed
AS 11.46.740(a)(2) doesn't own the computer in question.
MS. CARPENETI cautioned against making a lack of ownership an
element of the offense, reiterating that [under the language of
AS 11.46.740(a)], the State would already have to prove beyond a
reasonable doubt that the person had no right to engage in the
proscribed behavior, and that it would be best to simply delete
Section 2 and divide the language of proposed AS
11.46.740(a)(2).
2:52:07 PM
REPRESENTATIVE GRUENBERG concurred with Ms. Carpeneti that under
proposed AS 11.46.740(a) as currently written, the State would
have to prove that the person had no right to engage in the
proscribed behavior outlined in proposed paragraph (2),
acknowledging that owning a computer does give a person the
right to do as he/she wishes with it.
MS. CARPENETI concurred, and ventured that making a lack of
ownership an element of the offense could also prove problematic
in situations involving a business or entity that provides its
customers with access to its computers or and/or its Internet
service - such a business or entity shouldn't have a right to
use keystroke logger technology to obtain its customers'
personal information simply because it owns the computers and/or
Internet service. She again recommended deleting Section 2 of
the bill. In response to further questions, she too noted that
businesses and other entities do have the right to monitor what
their employees are doing on company-owned computers. However,
if such computers were being used by both employees and
customers, then it would be up to the State to prove beyond a
reasonable doubt that the business or entity didn't have the
right to incidentally monitor its customers' computer activity
while monitoring its employees' computer activity.
MR. BREMER relayed that the joint prime sponsors would be
deleting Section 2.
CHAIR GATTO, after ascertaining that no one else wished to
testify, closed public testimony on the bill, and announced that
HB 23 would be held over while the committee awaits a
forthcoming proposed CS addressing the aforementioned concerns.
2:57:50 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:57 p.m.