Legislature(2011 - 2012)BELTZ 105 (TSBldg)
04/11/2011 01:30 PM Senate JUDICIARY
| Audio | Topic |
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| Start | |
| SB86 | |
| HB127 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 89 | TELECONFERENCED | |
| + | HB 127 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 86 | ||
HB 127-OMNIBUS CRIME BILL
2:07:51 PM
CHAIR FRENCH announced the consideration of HB 127, version I,
the omnibus crime bill. He noted that the committee previously
heard the Senate companion bill.
ANNE CARPENETI, Assistant Attorney General, Civil Division,
Department of Law (DOL), provided the following sectional
analysis:
Sections 1 and 2 expand the definition of "non-consensual
contact" for purposes of the stalking statute. Stalking
prohibits a person from putting another person in fear of death
or physical injury by following a course of conduct. "Course of
conduct" is defined in statute as including various instances of
non-consensual contact. This bill adds to the definition to
include either following a person with a global positioning
device (GPS) or using either hardware or software on a person's
phone or computer in their home, workplace, or vehicle.
CHAIR FRENCH recalled that Mr. Svobodny gave the committee a
good overview of this provision.
MS. CARPENETI continued:
Section 3 increases the penalty for the crime of online
enticement of a minor from a class C felony to a class B felony,
if the person is a first-time offender. If the person has
already been convicted of a sex offence, the penalty is
increased from a class B felony to a class A felony.
CHAIR FRENCH noted that the committee asked about the numbers of
prosecutions under the online enticement statute.
MS. CARPENETI informed the committee that for 2008 through 2010,
15 cases of online enticement were referred to the Department of
Law (DOL) for prosecution, and 12 were accepted for prosecution.
CHAIR FRENCH said he would defer to the entire committee, but he
isn't convinced of the need to raise the status of the crime for
first-time offenders. He added that he likes the Department of
Law's (DOL) idea with respect to repeat offenders; they should
receive increased penalties.
MS. CARPENETI said Sergeant DeGraaf was available to describe
some of the cases.
CHAIR FRENCH acknowledged that he could be persuaded to change
his mind.
2:11:19 PM
SENATOR WIELECHOWSKI observed that the language in the new
provisions in Section 1 is fairly broad. He asked where it would
apply.
MS. CARPENETI explained that it's part of the definition of
"non-consensual contact," which is included in the definition of
"course of conduct" in the stalking statute. That statute
prohibits following a course of conduct that puts a person in
fear of death or physical injury. "Course of conduct" is defined
as "Two or more instances of non-consensual contact." This bill
adds to that definition. She agreed that the language is broad,
but it is under current law as well.
SENATOR PASKVAN asked if this would bring in the paparazzi.
MS. CARPENETI said probably not, unless there was some other
evidence. It's necessary to prove that the defendant recklessly
placed another person in fear of death or physical injury by
engaging in a course of conduct that includes non-consensual
contact.
SENATOR WIELECHOWSKI asked if the standard for committing the
crime is objective or subjective. For example, would he have
committed a crime if he used his phone to take a picture of
somebody in their car, and they thought subjectively that he was
harassing them?
MS. CARPENETI replied it's a more objective standard, and added
that stalking cases aren't easy prosecutions.
CHAIR FRENCH said the conduct is highly contextual. Standing
outside a person's house holding a rose isn't threatening
conduct, unless it comes after an assault, an act of vandalism,
or a death threat.
2:15:05 PM
SENATOR WIELECHOWSKI questioned whether that hypothetical would
violate the statute; whereas making a threat of harm and then
taking pictures of the person in their car would violate the
statute.
MS. CARPENETI replied it's in the context of where this fits in
the stalking statute. The intent of these additions is to take
new technology into account.
CHAIR FRENCH pointed out that subparagraph (G) on page 2, line
12, could be interpreted broadly; it talks about "placing an
object on, or delivering an object to." A prosecutor would have
to convince a jury that there was something threatening about
that conduct, but very innocuous conduct could be placed in a
highly dangerous context by a broad course of conduct.
MS. CARPENETI suggested reading the stalking statute, AS
11.41.270, to understand the starting point.
2:16:48 PM
MS. CARPENETI continued the sectional analysis.
Section 5 raises the crime of unlawful exploitation of a minor -
creating pornography using minors, to a class A felony for all
offenders. Currently it's a class B felony for a first-time
offender and a class A felony for a convicted sex offender.
Section 6 addresses the crime of endangering the welfare of a
child. Current law prohibits a person from leaving a child under
age 16 with a person that is required to register as a sex
offender, or has been charged for a sex offense. This adds child
kidnapper to the list, because most cases of child kidnapping
involve sexual abuse. She noted that the House Judiciary
Committee made minor drafting changes to clarify that the person
is either required to register or is under the charge of these
offenses.
SENATOR COGHILL asked how this meshes with charges of kidnapping
as a result of child custody disputes.
MS. CARPENETI explained that people who get into disputes about
their own children are charged with custodial interference. They
are not charged with kidnapping, and don't have to register as
either a sex offender or a child kidnapper.
Section 7 deals with sexting - sending an explicit picture of a
minor. The House committees changed this provision in a couple
of important ways. First, the state is required to prove the
culpable mental state that the person sent the image with the
intent to annoy or humiliate another person. Second, it would be
a class B misdemeanor if the person sends the image and a class
A misdemeanor if the person puts the image on an Internet
website that is accessible to the public.
2:19:51 PM
SENATOR WIELECHOWSKI commented that he'd never seen a bill that
criminalized "the intent to annoy or humiliate."
CHAIR FRENCH pointed out that the crime of harassment has been
on the books for a long time, and it talks about intent to
harass or annoy. This new section is intent to annoy or
humiliate. He reiterated that intent is difficult to prove.
MS. CARPENETI agreed, and added that the positive result of this
culpable mental state is that it avoids the problems that were
previously discussed about baby pictures and photographs that
parents might send to brag about their children.
SENATOR WIELECHOWSKI asked for an explanation of how the intent
works, because a young child wouldn't feel annoyance or
humiliation about a photo that was sent or posted.
MS. CARPENETI responded that a charge wouldn't be brought if the
prosecution couldn't prove that a person acted with the intent
to annoy or humiliate a child.
Section 8 is a conforming amendment to show that the conduct in
the prior section is excluded from the harassment prohibition.
2:21:53 PM
SENATOR COGHILL asked if the intent language had been upheld in
other jurisdictions or federal law.
MS. CARPENETI replied she hadn't seen a decision addressing that
particular language, but there is some precedent for the term
here in Alaska where people have been convicted of intent to
annoy or harass another person.
2:22:27 PM
Section 9 adopts two new crimes: 1) misconduct involving
confidential information in the first degree, and 2) misconduct
involving confidential information in the second degree. The
second degree offense prohibits a person from obtaining
information that is defined as confidential by law without the
consent of the owner of that information. Confidential
information is defined in several places in statute, including
child in need of aid (CINA) information, juvenile justice
information and information encoded on an access device.
SENATOR WIELECHOWSKI referenced Section 7 and asked if it would
be a crime to take an explicit picture of a two-year-old with
the intent to annoy or humiliate the parents.
MS. CARPENETI answered no, and directed attention to page 3,
lines 28-29. The intent to annoy or humiliate relates back to
the person whose picture was taken.
CHAIR FRENCH said the committee would have to consider whether
it wanted to make it a crime to annoy a parent by sending an
explicit picture of a child.
SENATOR PASKVAN asked if a parent would have standing if their
14-year-old didn't object, but the parent did.
CHAIR FRENCH said he reads the statute to say it's got to annoy
or humiliate the person whose picture was sent.
2:25:04 PM
MS. CARPENETI continued to explain that misconduct involving
confidential information in the first degree would make it a
crime to commit the second degree offense with the intent to
injure, or to use the information to commit a crime, or obtain a
benefit to which the person is not entitled.
CHAIR FRENCH asked what this is intended to pick up that the
current statute doesn't cover.
MS. CARPENETI replied there are statutes involving identity
theft using an access device, and this is about obtaining
information when there is no right to do so.
SENATOR WIELECHOWSKI asked how confidential information is
defined.
MS. CARPENETI replied it's defined on page 5, starting on line
10. It is information that is classified as confidential by law,
and information encoded on an access device that is used without
consent.
Section 10 clarifies that for these crimes a person may be
prosecuted, under Alaska law, for conduct that occurs outside
the state, if the victim is in this state.
CHAIR FRENCH asked if the confidential information addressed in
Section 9 would include passwords to protect bank accounts or
email accounts.
MS. CARPENETI said she didn't know but she'd find out.
In Section 11, the House Finance Committee added the provisions
of HB 175 to correct instances of disagreement between the
statutes and Court Rules. Probably the most important is the 48
hour provision. Since statehood, it's been the law to bring a
person arrested before a judicial officer without unnecessary
delay, and in any event, within 24 hours after arrest. The bail
bill that passed last year changed the Court Rules to 48 hours,
but the statutes weren't similarly changed. This bill does that
in both the arrest statutes and the extradition statutes.
2:28:51 PM
SENATOR WIELECHOWSKI asked her to discuss the constitutionality
in light of the U.S. Supreme Court cases that talk about
unreasonable delays.
MS. CARPENETI said Alaska doesn't have an opinion, because the
rule has never before been 48 hours, but 48 hours and 72 hours
have been upheld by state courts as well as the U.S. Supreme
Court. DOL expects that this would be constitutional,
particularly since there is still the requirement to bring a
person arrested in front of a judicial officer without
unnecessary delay.
SENATOR PASKVAN said if this passes he'd like a report a year
from now on the number of [appearances] that occurred within 24
hours compared to 48 hours. This would be a check on whether or
not the system was getting lazy and people were being held
longer than necessary.
MS. CARPENETI told the committee that [since the bail bill
passed] Fairbanks has been following the 48 hour Court Rule
rather than the statute. In just one instance were people
brought in after more than 24 hours, and that was due to an ice
storm that shut everything down.
SENATOR PASKVAN said he'd like to think that that type of prompt
handling would continue.
MS. CARPENETI pointed out that arraignments are done every day,
including weekends and holidays.
2:32:02 PM
CHAIR FRENCH informed the committee that he discussed a 36-hour
timeframe with Ms. Carpeneti to allow law enforcement a full
working day to prepare for an arraignment. Part of the problem
now is that if someone is arrested at 3:00 a.m., everything has
to be ready for the arraignment by the next afternoon, or the
person goes free.
MS. CARPENETI said Section 12 reflects the increased penalties
for unlawful exploitation of a minor and online enticement of a
minor in the sentencing statutes.
Section 13 reflects the change to 48 hours in the extradition
statutes.
Sections 14 and 15 correct inconsistencies between statutes and
Court Rules. Section 14 changes the penalty in Title 28, for the
correctable offense of failure to carry and provide proof of a
driver's license, from a class B misdemeanor to an infraction.
Section 15 changes the penalty in Title 28, for the correctable
offense of failure to carry proof of vehicle insurance, from a
class B misdemeanor to an infraction.
Section 16 clarifies that for misdemeanor offenses the
appointment of a probation officer for supervised probation is
at the discretion of the commissioner of corrections.
Section 17 deals with the inconsistency between burning a
vehicle in the Knik River Public Use Area, and burning a vehicle
on any other public property in the state. In 2006 the
Department of Natural Resources adopted regulations, as directed
by statute, and set a $50 fine for burning a vehicle in the new
Knik River Public Use Area. Two years later, the Legislature
adopted the crime of arson in the third degree, which made it a
class C felony to burn a vehicle on any public property, except
in the Knik River Public Use Area. Section 17 corrects this
inconsistency.
2:36:00 PM
SENATOR WIELECHOWSKI asked for the rationale for making the
offense addressed in Section 15 an infraction as opposed to a
class B misdemeanor.
MS. CARPENETI responded that in the past five years the
Legislature adopted the mandatory $500 fine for the offense, if
a person doesn't bring in proof of vehicle insurance.
SENATOR PASKVAN asked what the maximum jail time is for a class
B misdemeanor.
MS. CARPENETI replied the maximum penalty for a class B
misdemeanor is 90 days and one year for a class A misdemeanor.
SENATOR PASKVAN asked about Section 13 on page 8, the arrest
without warrant provision - that talks about imprisonment for a
term exceeding one year.
MS. CARPENETI said this deals with arrest without warrant of
people who are found to be fugitives from another state. It's
addressing the fact that Alaska doesn't extradite people for
misdemeanors.
SENATOR PASKVAN asked if someone can be arrested for a class B
misdemeanor and held for 48 hours.
MS. CARPENETI said it's unlikely to happen, but sometimes a
person that's arrested for a misdemeanor is too intoxicated to
be arraigned within 24 hours.
SENATOR PASKVAN mentioned the [Yukon-Charlie Rivers National
Preserve] incident and said he's concerned about overzealous law
enforcement officers. He added that he's struggling with how
long a class B misdemeanant should sit in jail, if there's no
penalty.
MS. CARPENETI responded that a person wouldn't be arrested if
it's changed to an infraction.
SENATOR PASKVAN pointed out that, right now, it would be a crime
for which a person could be arrested and taken to jail.
MS. CARPENETI responded that that's within the discretion of the
arresting officer. Most misdemeanors result in a citation,
unless the person fails to provide proof of identification or
appears to be a danger.
2:40:58 PM
SENATOR WIELECHOWSKI said he's always wary of giving discretion
to prosecutors and police officers, when it's a matter of taking
away a person's liberties and rights. He said he shares Senator
Paskvan's concern and it extends throughout the bill.
CHAIR FRENCH said it's a fair concern.
MS. CARPENETI said Section 18 redrafts the administrative
subpoena section that passed last year in Senate Bill 222. It
speeds up the method for getting information from an ISP, so
that the police can get a warrant to search a particular
computer. It also addresses delegation, and what happens to the
information if it's not used in a criminal investigation. The
provision last year provided that it either be returned to the
ISP or destroyed. That's impractical because the ISP already has
the information and it's probably not a good idea for government
to destroy records. Instead, the information can be sealed or
made part of a confidential file that people can't access. She
noted that Sergeant DeGraaf was available to discuss that
further.
CHAIR FRENCH thanked Ms. Carpeneti and suggested the committee
spend the remainder of its time today discussing subpoenas. He
asked Sergeant DeGraaf to put himself on the record.
2:44:10 PM
SERGEANT DEREK DEGRAAF, Alaska State Troopers, Department of
Public Safety (DPS), said he supervises the cybercrimes
investigative unit, and is part of the Internet Crimes Against
Children Taskforce for Alaska. Stating support for the bill, he
said he'd like to provide a street view of how these changes
would work.
Speaking to the provisions on page 2 that raise the penalty for
online enticement of a minor a felony level, he said most people
are familiar with the online enticement crime because of the "To
Catch a Predator" television show. In these cases an
investigator goes online and poses as a young person who can be
lured by a bad guy to meet for sex. Law enforcement looks at
catching these predators as "good saves," because this crime is
a precursor to several other much more serious offenses. Without
intervention, that meeting can turn into a situation of sexual
abuse of a minor, production of child pornography, or a
homicide. Perpetrating this sort of crime takes away a child's
innocence, and he or she can never get that back. Kids that are
under age 16 are the most vulnerable, because they can't give
consent. Unfortunately, law enforcement often learns about this
crime only when a parent calls to report what happened to their
child. The first-time offender is just as bad as the second-time
offender, he said. The television show demonstrates that the
same guy will show up more than once.
2:48:07 PM
Section 7 on pages 3-4: AS 11.61.116 - Sending an explicit image
of a minor. Sergeant DeGraaf said law enforcement gets quite a
few calls from parents and school officials regarding sexting.
Most frequently, a girl takes a provocative picture of herself
and sends it to her boyfriend, who eventually passes it along or
posts it online. In some instances, this has resulted in the
suicide of the person who was photographed. It's important to
deal with this right now, because law enforcement doesn't have
the authority to do anything about this unless the image rises
to the level of child pornography.
Section 9 on pages 4-5: AS 11.76 - Misconduct involving
confidential information. A Google search for "credit card
skimmer" will show what these new sections address, he said.
These $200 pocket-size devices are available on the Internet,
and they're designed to quickly skim confidential information
from a credit card. He described a case in Wasilla where the
card owner saw the initial skimming and reported it to the
police.
SERGEANT DEGRAAF said that making the initial skimming a crime
will help prevent the sale of personal information. He noted
that new radio-frequency identification (RFID) scanner
technology makes it possible to gather information from a
passport or credit card that is in a pocket or purse, without
touching the person. This electronic pick pocketing needs to be
stopped here in Alaska, he stated.
CHAIR FRENCH mentioned Senator McGuire's bill from several years
ago to narrow the use of RFID technology.
SERGEANT DEGRAAF voiced support for extending the window between
arrest and arraignment from 24 hours to 48 hours in Section 11.
He related that sometimes law enforcement has to time an arrest
based on that 24 hour window, even though waiting can, in rare
circumstances, create a public safety problem. For rural
troopers weather is generally the biggest factor for fitting
within that window.
Section 18 on pages 9-10: AS 44.23.080 - Subpoena power of
attorney general in cases involving use of an Internet service
account. Sergeant DeGraaf emphasized that the ability to quickly
link an IP address to a physical location will help take more
child predators off the street. He confirmed that a search
warrant will still be required to contact a person and seize
their computer or go to their house to conduct a criminal
investigation.
SERGEANT DEGRAAF reminded the committee of the staggering number
of Alaskans that share or create or distribute child pornography
on the Internet, and noted that both the Anchorage Police
Department and the Alaska State Troopers have officers who work
fulltime trying to catch these people, most of whom are men. He
asked the committee for its continued support for this measure.
2:53:30 PM
CHAIR FRENCH recalled that the committee learned last year that
the missing link and point of the subpoena was to link an [IP]
address with a physical location.
SERGEANT DEGRAAF said that's correct. Right now law enforcement
is required to obtain a search warrant in order to locate the
physical location of an IP address, and that takes significant
time.
CHAIR FRENCH asked him to describe what problems resulted from
the bill that passed last year.
SERGEANT DEGRAAF said the largest problem was that only the
attorney general could authorize the subpoena and that caused
delays. This bill gives that authority to the attorney general
or an attorney general designee. A more minor issue was the
civil subpoena process compared to a search warrant.
SENATOR WIELECHOWSKI asked if anyplace else in criminal law
allows the attorney general or his designee the power to issue a
subpoena.
SERGEANT DEGRAAF deferred to Ms. Carpeneti.
CHAIR FRENCH told the committee that a commissioner is
authorized to issue a subpoena in a half dozen other instances.
He said he doesn't know if a commissioner's designee can issue a
subpoena. The important distinction is whether the information
gained by that subpoena is likely to lead to a criminal
prosecution.
SENATOR WIELECHOWSKI voiced concern with giving authority to not
only the attorney general, but also his designee to search and
seize someone's property.
CHAIR FRENCH pointed out that this isn't about seizing anything,
but he shares the concern, and is considering narrowing it to
the deputy attorney general of the criminal division.
2:57:25 PM
SENATOR PASKVAN asked what the time difference is between
obtaining a subpoena from a superior court judge versus the
attorney general.
SERGEANT DEGRAAF explained that if he had probable cause or
reasonable suspicion that an IP address was involved with the
production or distribution of child pornography images, he'd
write a search warrant affidavit. These 15-20 page documents lay
out the flow of the investigation and take between 3 and 4 hours
to write, review and deliver to the court. It may take another
hour for a judge to review the affidavit and sign off on it.
Filling out the DOL form for the summons or subpoena might take
10 minutes, and then it's emailed to the DOL for review and
signature. The DOL sends the authorization by email and it can
be emailed directly to the Internet service provider. He said
that when he identifies an Internet address he immediately
contacts the ISP asking the provider to start gathering the
data, because a search warrant is forthcoming. He estimated that
this change would save four to five hours per case.
SENATOR PASKVAN asked why the search warrant affidavit that's
submitted to the court couldn't be put into a form that's
similar to the document that's submitted to the attorney
general.
SERGEANT DEGRAAF replied the court requires a probable cause
statement for the search warrant, whereas the administrative
subpoena uses reasonable suspicion. The required data for a
subpoena is significantly less. The business record that the ISP
provides basically translates the IP address to a physical
address, and that's when the real investigation begins. At that
point, law enforcement develops probable cause and gets a search
warrant to enter the house. A number of other states have done
this to better identify and target these bad actors. He added
that not every subpoena would end up in a criminal
investigation. He first targets registered sex offenders and
persons in a position of authority versus the 18-year-old that
has child pornography on his computer.
SENATOR PASKVAN asked if the intent of the attorney general
subpoena is to then get a search warrant from a judge.
SERGEANT DEGRAAF said yes; when he gets the subpoena back with
the physical address, he does a drive by to confirm that the
name and address the Internet service provider gave matches the
tax records and things like the license of the car in the
driveway. A normal police investigation then ensues, and a
search warrant is required before entering the residence or
business to seize computers for the investigation. Federal law
enforcement already follows this protocol.
CHAIR FRENCH pointed out that the universe of what law
enforcement gets from the subpoena is set forth on page 9, line
31 through page 10, line 3. It does not include a file, a disc,
a computer, or a house.
SENATOR PASKVAN asked if the current three hour process of going
through the court results in a subpoena to access [ISP] records
and a search warrant.
SERGEANT DEGRAAF said right now it's a two search warrant
process.
CHAIR FRENCH thanked Sergeant DeGraaf and announced he would
hold HB 127 in committee.
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