Legislature(2009 - 2010)BELTZ 105 (TSBldg)

03/31/2010 01:30 PM Senate JUDICIARY


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01:33:57 PM Start
01:34:08 PM Confirmation Hearing Legislative Ethics Committee
01:40:05 PM SJR28
01:41:33 PM HB101
01:49:58 PM SB190
02:24:46 PM HB108
02:51:24 PM SB249
02:58:15 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Confirmations: Select Committee on TELECONFERENCED
Legislative Ethics
+ SB 249 PUBLIC RECORDS/ELECTRONIC TRANSMISSIONS TELECONFERENCED
Heard & Held
+ HB 108 PROP. FORECLOSURE/EXECUTION/TRUST DEEDS TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= HB 101 EXEMPTIONS: LIFE INSURANCE; ANNUITIES TELECONFERENCED
Heard & Held
+= SB 190 BIOMETRIC INFORMATION FOR ID TELECONFERENCED
Heard & Held
+= SJR 28 ECUMENICAL PATRIARCHATE OF TURKEY TELECONFERENCED
Moved SJR 28 Out of Committee
              SB 190-BIOMETRIC INFORMATION FOR ID                                                                           
                                                                                                                                
CHAIR  FRENCH  announced  the  consideration  of  SB  190.  [CSSB
190(STA) was before the committee.]                                                                                             
                                                                                                                                
1:49:58 PM                                                                                                                    
SENATOR WIELECHOWSKI  said the purpose of  SB 190 is to  update a                                                               
law that  protects the privacy  rights of citizens  from emerging                                                               
new technologies.  In 2004 the  Legislature unanimously  passed a                                                               
bill  by  Senator  Donny  Olson   that  outlaws  the  collection,                                                               
analysis or storage of a  law-abiding citizen's DNA without their                                                               
written consent.  SB 190 extends  that protection to  other forms                                                               
of   biometric  information   because  emerging   technology  for                                                               
individual  recognition  threatens  privacy  rights.  The  Alaska                                                               
Constitution has the strongest provision  in the nation regarding                                                               
individual privacy  rights and  this bill  meshes very  well with                                                               
that constitutional provision, he said.                                                                                         
                                                                                                                                
The Legislature  recently rejected  adopting the federal  Real ID                                                               
Act because it  would give the federal government  the ability to                                                               
track people through  radio frequency ID chips  in their driver's                                                               
license.   But  now   people  can   be  tracked   through  facial                                                               
recognition or  retinal scan technologies, which  greatly impacts                                                               
individual privacy rights, he said.                                                                                             
                                                                                                                                
SENATOR WIELECHOWSKI  reported that his office  was approached by                                                               
a citizen in 2008 who was  refused admittance to a state CPA exam                                                               
after  he  offered his  driver's  license,  passport, and  Social                                                               
Security  card as  identification, but  he refused  to submit  to                                                               
fingerprinting. He inspired the bill.                                                                                           
                                                                                                                                
1:52:42 PM                                                                                                                    
CHAIR  FRENCH  related that  he  heard  the  bill in  a  previous                                                               
committee and has no questions.                                                                                                 
                                                                                                                                
GEORGE  ASCOTT, Staff  to Senator  Wielechowski, said  the packet                                                               
contains an explanation  of the changes that  occurred in version                                                               
T.                                                                                                                              
                                                                                                                                
SENATOR  COGHILL observed  that  the  definitions for  "biometric                                                               
information" on  page 3, lines 6-8,  are quite broad and  seem to                                                               
be terms of art. He asked if  the terms had been litigated and if                                                               
facial recognition is different than a photograph.                                                                              
                                                                                                                                
MR.  ASCOTT said  a  photograph  is a  picture  whereas a  facial                                                               
recognition system has a camera,  software to capture information                                                               
beyond the image, and a  computer system to classify the elements                                                               
and differentiate between faces.                                                                                                
                                                                                                                                
1:55:31 PM                                                                                                                    
SENATOR  COGHILL  asked  about  the  circumstance  of  a  private                                                               
investigator who is trying to prove  that somebody was at a crime                                                               
scene  and  in  the  process  collects  some  of  this  biometric                                                               
information.                                                                                                                    
                                                                                                                                
MR.  ASCOTT said  the  Department of  Law  has similar  concerns,                                                               
specifically with  regard to fingerprints because  they sometimes                                                               
rely  on  fingerprints  that  a  private  investigator  may  have                                                               
collected. He  clarified that thwarting  common practices  is not                                                               
the intent.                                                                                                                     
                                                                                                                                
SENATOR  COGHILL  said  he shares  the  sponsor's  concern  about                                                               
protecting   personal   identity,   but  he   doesn't   want   to                                                               
inadvertently open  the door  for civil  action for  doing things                                                               
that are common practice.                                                                                                       
                                                                                                                                
1:58:10 PM                                                                                                                    
RICK SVOBODNY, Deputy Attorney General,  Department of Law (DOL),                                                               
explained that  in 2004 when  Title 18  was amended to  deal with                                                               
DNA,  there  was concern  that  much  more information  could  be                                                               
obtained from  a DNA sample  than simple  identification. Science                                                               
was and is  moving very fast and that's why  that legislation was                                                               
limited  to  DNA. Since  then  biometric  information like  voice                                                               
recognition has become ubiquitous.  Phone companies retain voices                                                               
to help "teach" their software  to read different accents, Google                                                               
does the same  thing with spell checking on  search requests, and                                                               
Las Vegas casinos  use visual recognition software  to stop card-                                                               
counters from coming into the casinos.                                                                                          
                                                                                                                                
2:01:26 PM                                                                                                                    
MR.  SVOBODNY said  the foregoing  examples don't  relate to  the                                                               
department  too much,  but collecting  or retaining  fingerprints                                                               
does  because  DOL often  relies  on  private investigators  from                                                               
insurance companies to  do arson examinations. AS  18.70.090 is a                                                               
specific  statute  that  says  that the  police  can  and  should                                                               
cooperate with private investigators  from insurance companies in                                                               
arson investigations.  For that reason, fingerprints  may well be                                                               
collected and retained.                                                                                                         
                                                                                                                                
Although the  changes in the  CS exclude government  agencies, it                                                               
doesn't  include the  agents of  those  government agencies.  For                                                               
example,  village public  safety  officers (VPSO)  don't fit  the                                                               
definition of  a government agency  and they wouldn't be  able to                                                               
collect  or transmit  fingerprint  or DNA  samples  from a  crime                                                               
scene under this.  Tribal public safety officers  (TPSO) would be                                                               
similarly limited.                                                                                                              
                                                                                                                                
2:04:07 PM                                                                                                                    
SENATOR  WIELECHOWSKI  highlighted  that   page  2,  lines  1-12,                                                               
specifically say that  the prohibitions in subsection  (a) do not                                                               
apply  to DNA  samples or  other biometric  information collected                                                               
for  law  enforcement purposes.  He  asked  if that  exclusionary                                                               
provision wouldn't apply to those situations.                                                                                   
                                                                                                                                
MR. SVOBODNY said an ambiguity  in a criminal statute always goes                                                               
to  the  defense.  "Because  you  define  out  from  governmental                                                               
entities VPSOs  [and] TPSOs -  there's that ambiguity  that means                                                               
the state in a criminal case loses."                                                                                            
                                                                                                                                
SENATOR  FRENCH  asked  if  he's  saying  that  the  exclusionary                                                               
provision conflicts with Section 3.                                                                                             
                                                                                                                                
MR. SVOBODNY said yes on page 2, line 31.                                                                                       
                                                                                                                                
SENATOR FRENCH  asked if it  would alleviate his concern  to say,                                                               
"a person who is not a  governmental entity or who is not engaged                                                               
in a law enforcement purpose commits the crime…"                                                                                
                                                                                                                                
MR. SVOBODNY answered yes.                                                                                                      
                                                                                                                                
2:06:20 PM                                                                                                                    
MR. SVOBODNY  said his two final  points are civil as  opposed to                                                               
criminal.  First, this  creates  a private  right  of action  and                                                               
people can  and will  sue. Although this  won't affect  the state                                                               
very much, he said he wanted to  mention it as a point of ethics.                                                               
Second, he  said he doesn't  know what the  "willing" requirement                                                               
for informed consent on page 1, line 10, really means.                                                                          
                                                                                                                                
MR.  SVOBODNY  summarized  that DOL's  concern  centered  on  the                                                               
agency  issue  and  dealing with  insurance  companies  that  are                                                               
providing services  to law enforcement  or others who  are acting                                                               
at the request of law enforcement.                                                                                              
                                                                                                                                
2:08:47 PM                                                                                                                    
SENATOR COGHILL asked his perspective  on calling the definitions                                                               
for  biometric information  terms of  art and  questioned whether                                                               
the  meaning of  "collect"  will be  problematic  with this  much                                                               
broader category.                                                                                                               
                                                                                                                                
MR. SVOBODNY  acknowledged that he  was concerned about  the word                                                               
"collect"  in light  of the  expanded area  of things  you cannot                                                               
collect. He  related that for crime  to occur there will  have to                                                               
be a culpable mental state,  but unless it's defined differently,                                                               
the person will have to  knowingly collect. A larger concern with                                                               
the  current  language relates  to  retention  although he  can't                                                               
imagine people being prosecuted  for inadvertently collecting and                                                               
retaining fingerprints. In fact, an  Alaska court has said that a                                                               
person does  not have  a privacy  interest in  their fingerprints                                                               
just as  they don't have a  privacy interest in their  address or                                                               
face. This would change that court decision by statute, he said.                                                                
                                                                                                                                
SENATOR  COGHILL asked  if the  right to  action with  respect to                                                               
collection  would  be because  the  intention  was to  cause  the                                                               
person damage or because another person or entity would gain.                                                                   
                                                                                                                                
2:11:45 PM                                                                                                                    
MR. SVOBODNY said  the bill does have a  $5,000 penalty provision                                                               
and  a  higher  penalty  provision   if  the  person  is  seeking                                                               
financial gain from someone who  obtained or retained their voice                                                               
for economic benefit.                                                                                                           
                                                                                                                                
SENATOR COGHILL asked if there's  any reason to be concerned with                                                               
the definitional terms of art under biometric information.                                                                      
                                                                                                                                
MR.  SVOBODNY said  he doesn't  understand facial  recognition to                                                               
mean  taking a  photograph. He  hasn't done  research to  know if                                                               
facial recognition and voice  recognition have specific meanings,                                                               
but  he  assumes  that  they  do. Certainly  there  are  lots  of                                                               
examples of their use.                                                                                                          
                                                                                                                                
2:14:09 PM                                                                                                                    
SENATOR COGHILL said these definitions  will be very important if                                                               
someone wants to bring action.  The bill specifies certain fines,                                                               
but he's trying to figure out how you defend yourself.                                                                          
                                                                                                                                
JEFFREY MITTMAN, Executive Director,  ACLU of Alaska, thanked the                                                               
sponsor   for  introducing   good,  proactive   legislation  that                                                               
appropriately  balances  the needs  of  law  enforcement and  the                                                               
constitutional rights of Alaskans. SB  190 expands current law to                                                               
include  biometric information,  which  has  become important  in                                                               
business and  law enforcement.  The ACLU  of Alaska  supports the                                                               
bill, he concluded.                                                                                                             
                                                                                                                                
SENATOR COGHILL  asked if he had  studied any of the  terms under                                                               
the definition of biometric information.                                                                                        
                                                                                                                                
MR. MITTMAN replied he isn't  familiar with any specific case law                                                               
that would apply in this context.                                                                                               
                                                                                                                                
2:16:50 PM                                                                                                                    
BILL  SCANNELL,  representing  himself,  reported that  he  is  a                                                               
privacy  activist  speaking  in  strong support  of  SB  190.  He                                                               
suggested  that  the  committee  put  things  in  perspective  by                                                               
considering  the  difference  between losing  your  wallet  fifty                                                               
years ago and losing it today.  Then you'd lose the money in your                                                               
wallet and  now "when you lose  your wallet in many  ways you can                                                               
lose your life,"  he asserted. He cited the  Clear program, which                                                               
was  supposed  to  expedite  a   person's  trip  through  airport                                                               
security, as  an example. When  that company went  bankrupt, tens                                                               
of   thousands  of   people  found   that  their   retina  scans,                                                               
fingerprints, hand geometry, and  facial patterns were being sold                                                               
to the  highest bidder. People  need to understand  how important                                                               
these  biometric  issues  are  and  the  role  of  the  state  in                                                               
protecting   all    Alaskans   from   both   misuse    and   poor                                                               
implementation, he said.                                                                                                        
                                                                                                                                
MR. SCANNELL  asked the committee  to think about two  things. 1)                                                               
SB 190  will create an  overall policy of buying  technology that                                                               
is appropriate  to the job  at hand; and 2)  this is a  good pre-                                                               
emptive move to ensure that if  a biometric program is found that                                                               
works, that biometric won't be wasted.                                                                                          
                                                                                                                                
2:20:29 PM                                                                                                                    
CHAIR  FRENCH asked  Mr.  Ascott  if the  bill  had received  any                                                               
pushback.                                                                                                                       
                                                                                                                                
MR. ASCOTT  aid the National  Council of Life  Insurers contacted                                                               
the sponsor  and suggested an  amendment to  significantly narrow                                                               
the definition of  biometrics. That was done,  but the definition                                                               
may have to be narrowed further  to remove the term "DNA" because                                                               
it's already been defined.                                                                                                      
                                                                                                                                
SENATOR  COGHILL pointed  out that  the original  legislation was                                                               
quite specific with  respect to getting a DNA  sample and holding                                                               
it  for a  period  of  time whereas  this  bill is  significantly                                                               
broader. I'm  open to suggestion,  he said, but I  really haven't                                                               
got my  mind around how  this is going to  work. He said  some of                                                               
his  concerns  about  voice recordings  and  pictures  have  been                                                               
allayed,  but   how  that  information  is   collected  could  be                                                               
significant.  Some  of  these  things   are  very  technical  and                                                               
specific, but they aren't specific in the bill, he said.                                                                        
                                                                                                                                
2:23:23 PM                                                                                                                    
SENATOR  WIELECHOWSKI  said  we'll  sit down  with  you  and  the                                                               
Department of  Law and try  to iron  out the concerns  because we                                                               
don't want  unintended consequences. What  the bill is  trying to                                                               
do is  to stop the expansion  of the surveillance society  in the                                                               
U.S. - particularly in Alaska.                                                                                                  
                                                                                                                                
CHAIR FRENCH announced he would hold SB 190 in committee.                                                                       

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