Legislature(2011 - 2012)BELTZ 105 (TSBldg)

04/13/2011 01:30 PM Senate JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= SB 86 PROTECTION OF VULNERABLE ADULTS/MINORS TELECONFERENCED
Moved CSSB 86(JUD) Out of Committee
+= HB 127 OMNIBUS CRIME BILL TELECONFERENCED
Heard & Held
+= SB 89 LEGISLATIVE ETHICS ACT TELECONFERENCED
Scheduled But Not Heard
                    HB 127-OMNIBUS CRIME BILL                                                                               
                                                                                                                                
1:39:55 PM                                                                                                                    
CHAIR FRENCH announced the consideration  of HB 127 and asked for                                                               
a motion to adopt the version E committee substitute (CS).                                                                      
                                                                                                                                
SENATOR  WIELECHOWSKI moved  to adopt  version E  [SCS CSHB  127,                                                               
labeled 27-GH1840\E,] as the working document.                                                                                  
                                                                                                                                
CHAIR FRENCH objected for discussion purposes.                                                                                  
                                                                                                                                
1:40:40 PM                                                                                                                    
CINDY SMITH,  Staff to Senator  French, said version E  makes the                                                               
following changes: It  deleted Section 3 of  the previous version                                                               
I, which increased  the penalty for enticement of a  minor on the                                                               
first offense.                                                                                                                  
                                                                                                                                
CHAIR FRENCH  said the deleted  section basically stepped  up the                                                               
penalty  for the  crime of  online enticement;  a class  C felony                                                               
became  a B  felony and  a  class B  felony became  an A  felony.                                                               
Anyone who  has committed a sex  offense in the past  and commits                                                               
online  enticement would  be charged  with a  class A  felony. He                                                               
said he initially had qualms  about increasing the class C felony                                                               
to  the   B  felony  level,   but  he  changed  his   mind  after                                                               
Commissioner   Masters  and   Attorney   General  Burns   brought                                                               
narratives of  recent cases  that have been  charged under  the C                                                               
felony. These are  serious crimes and it's an area  of problem in                                                               
the  state. He  added  that  he continues  to  have concern  that                                                               
increasing the penalty  might not result in  more offenders being                                                               
caught,  but in  this instance  it's worthwhile  to increase  the                                                               
penalty.                                                                                                                        
                                                                                                                                
1:42:58 PM                                                                                                                    
CHAIR FRENCH moved Conceptual Amendment 1 as follows:                                                                           
                                                                                                                                
     Reinsert Section  3 of version  I SCS for CSHB  127 and                                                                    
     make other  conforming changes  throughout the  bill as                                                                    
     necessary. This  would increase the penalty  for online                                                                    
     enticement from a class C felony to a class B felony.                                                                      
                                                                                                                                
SENATOR  WIELECHOWSKI asked  for  confirmation that  this adds  a                                                               
section to version E.                                                                                                           
                                                                                                                                
CHAIR FRENCH replied that's the idea.                                                                                           
                                                                                                                                
SENATOR COGHILL asked  if the amendment reinserts  from version I                                                               
the language on page 2, lines 23-24.                                                                                            
                                                                                                                                
CHAIR FRENCH answered yes, as a new section.                                                                                    
                                                                                                                                
MS. SMITH  added that  there would be  conforming changes  in the                                                               
sentencing section.                                                                                                             
                                                                                                                                
CHAIR   FRENCH  announced   that  without   objection  Conceptual                                                               
Amendment 1 was adopted.                                                                                                        
                                                                                                                                
MS. SMITH  said the second  change deleted  Sections 5 and  19 of                                                               
version I, pertaining  to unlawful exploitation of  a minor. This                                                               
was  done because  of the  strong  sense that  the provisions  in                                                               
exploitation of a  minor had become overly broad.  She noted that                                                               
the idea  is to rework  that section  over the Interim  to ensure                                                               
that the increased  penalties actually comport with  the level of                                                               
the particular crime.                                                                                                           
                                                                                                                                
CHAIR  FRENCH  added  that  AS  11.41.455  relating  to  unlawful                                                               
exploitation of  a minor has  been on the  books for a  long time                                                               
and he's found  it difficult to work with. This  statute covers a                                                               
broad range of  conduct and it needs to be  reshaped from time to                                                               
time to reflect  new provisions that have been put  on the books.                                                               
He said he  decided to work on  this over the summer  and DOL has                                                               
agreed to collaborate.                                                                                                          
                                                                                                                                
MS. SMITH  said the third  change added language in  Sections 3-6                                                               
to create penalties  for police officers that engage  in sex with                                                               
a person that  is in custody. It follows  the existing provisions                                                               
for correctional  officers. There are also  conforming changes in                                                               
the sentencing section of the bill.                                                                                             
                                                                                                                                
CHAIR FRENCH  added that Sections 3,  4, and 5 of  version E tell                                                               
police  officers that  having sex  with people  who are  in their                                                               
custody is not allowed. There is  no question of consent. This is                                                               
in reaction  to a  recent case  in Anchorage  and it  lets police                                                               
officers know  that this  behavior is  absolutely out  of bounds.                                                               
The language  was crafted  in conjunction with  the DOL  and it's                                                               
meant to pick up police officers  who are on duty and have people                                                               
in custody or  apparent custody or in the police  station. It's a                                                               
new provision.                                                                                                                  
                                                                                                                                
1:47:58 PM                                                                                                                    
SENATOR PASKVAN directed attention to  page 3, line 11, and asked                                                               
the  thought   process  for   using  the   terminology  "reckless                                                               
disregard."                                                                                                                     
                                                                                                                                
CHAIR FRENCH asked the DOL to describe the mental element.                                                                      
                                                                                                                                
1:48:16 PM                                                                                                                    
ANNE  CARPENETI, Assistant  Attorney General,  Criminal Division,                                                               
Department of Law  (DOL) said she assumes that  the drafter meant                                                               
that the  offender is acting  recklessly with regard to  the fact                                                               
that  the person  is in  custody. That  means the  police officer                                                               
knows  the risk  that the  person  is in  custody and  he or  she                                                               
consciously disregards that fact.                                                                                               
                                                                                                                                
CHAIR  FRENCH  asked  if  the  reason for  putting  in  the  word                                                               
"disregard" is because the police  officer is essentially pushing                                                               
aside the knowledge that he or she would otherwise have.                                                                        
                                                                                                                                
MS. CARPENETI  said the  phrase "knowing  in custody"  would work                                                               
but the  phrase "reckless  disregard" is  a tic  under "knowing."                                                               
It's that  the offender is aware  of the risk that  the person is                                                               
in custody  and puts aside  or disregards that  risk, essentially                                                               
saying they don't care.                                                                                                         
                                                                                                                                
1:49:22 PM                                                                                                                    
CHAIR   FRENCH  asked   if  this   is   customary  language   for                                                               
prosecutors.                                                                                                                    
                                                                                                                                
MS. CARPENETI  replied it's a  very common culpable  mental state                                                               
that is used all the time.                                                                                                      
                                                                                                                                
SENATOR  PASKVAN  questioned why  it  isn't  a simple  negligence                                                               
standard because  [reckless disregard]  seems to  require greater                                                               
proof that  the officer knows that  the person is in  custody. If                                                               
the  officer has  the  person  confined and  is  negligent as  to                                                               
whether the  person is in  custody or apparent custody  [a simple                                                               
negligence standard] would seem to be sufficient.                                                                               
                                                                                                                                
MS. CARPENETI  said simple  negligence generally  is not  used in                                                               
criminal statutes, but criminal negligence could be used.                                                                       
                                                                                                                                
SENATOR  PASKVAN  wondered  why  it  would have  to  be  a  gross                                                               
deviation as opposed to an absolute prohibition.                                                                                
                                                                                                                                
MS.  CARPENETI suggested  the drafter  answer that  question. She                                                               
then  stated for  the  record  that when  DOL  was talking  about                                                               
custody or apparent custody of  the offender, the intent was that                                                               
the courts  would interpret these  terms as similar to  the state                                                               
of custody for  a person who may  or may not be  under arrest and                                                               
he  or she  feels  unable to  leave the  presence  of the  police                                                               
officer.                                                                                                                        
                                                                                                                                
1:51:25 PM                                                                                                                    
CHAIR FRENCH  pointed out that  page 2,  line 27, uses  a knowing                                                               
standard for the  first prong of this violation; page  3, line 2,                                                               
uses a knowing  standard for the second prong  of this violation;                                                               
and [page  3], line  6, uses  a knowing  standard for  having sex                                                               
with  someone  who has  been  committed  to  the custody  of  the                                                               
Department of  Health and  [Social] Services.  Reckless disregard                                                               
makes  it  easier for  the  prosecution  because it's  an  easier                                                               
mental element to prove.                                                                                                        
                                                                                                                                
SENATOR WIELECHOWSKI  asked if  in the  recent case  in Anchorage                                                               
the  women  would  have  been  considered to  be  in  custody  or                                                               
apparent custody of the offender.                                                                                               
                                                                                                                                
MS. CARPENETI recalled that in  one instance the offender offered                                                               
the victim a ride  home from a shelter and instead  took her to a                                                               
police station.  Under those circumstances the  victim would feel                                                               
she was in custody and unable to leave.                                                                                         
                                                                                                                                
CHAIR  FRENCH  said  the  others were  DWI  processings  and  the                                                               
victims were clearly in custody.                                                                                                
                                                                                                                                
SENATOR PASKVAN  stated a preference for  an absolute prohibition                                                               
as  opposed to  allowing an  officer  the discretion  to say  the                                                               
person wasn't in custody or apparent custody.                                                                                   
                                                                                                                                
MS. CARPENETI said she appreciates  the point but she agrees with                                                               
the chair;  this is a  lesser standard  than the other  crimes in                                                               
third degree sexual assault.                                                                                                    
                                                                                                                                
SENATOR PASKVAN said  he would hope that a  higher standard would                                                               
be  imposed  on  law  enforcement officers  and  the  prohibition                                                               
should therefore be absolute.                                                                                                   
                                                                                                                                
1:55:35 PM                                                                                                                    
MS.  CARPENETI said  this  is  more likely  to  come  up when  an                                                               
officer is off duty and for  that reason there probably should be                                                               
a culpable mental state in regard to that circumstance.                                                                         
                                                                                                                                
Senator McGuire joined the committee.                                                                                           
                                                                                                                                
SENATOR  PASKVAN  cited an  example  of  an officer  engaging  in                                                               
unacceptable  behavior   after  helping  a  female   and  clearly                                                               
establishing  that she  wasn't in  custody and  opined that  this                                                               
language seems to  say that the officer is  engaged in acceptable                                                               
behavior on the job.                                                                                                            
                                                                                                                                
CHAIR FRENCH disagreed.  He said he understands  and respects the                                                               
nuance  in  regard  to  the mental  element,  but  this  language                                                               
absolutely  does not  suggest that  it's  okay to  have sex  with                                                               
someone who  is in custody.  This language  makes it a  crime for                                                               
police officers to engage in that behavior.                                                                                     
                                                                                                                                
1:58:20 PM                                                                                                                    
SENATOR COGHILL suggested  members keep in mind  that in addition                                                               
to the criminal  aspect there is also a  Police Standards Council                                                               
that  considers  conduct  and  other  issues  that  can  bring  a                                                               
person's entire career into question.                                                                                           
                                                                                                                                
CHAIR  FRENCH  responded  that  if  there  haven't  already  been                                                               
briefings  statewide in  this regard,  they will  be forthcoming.                                                               
Officers will  be directed to walk  clearly on the right  side of                                                               
the line.                                                                                                                       
                                                                                                                                
SENATOR PASKVAN  said if  the intent  is to  send a  clear social                                                               
message that  law enforcement officers,  in the course  and scope                                                               
of their  employment, do not  engage in sexual behavior,  then it                                                               
should be said that way. It's  irrespective of whether or not the                                                               
officer invites  someone into the vehicle  for outwardly innocent                                                               
purposes.                                                                                                                       
                                                                                                                                
MS. CARPENETI  said her recollection  is that the  [former police                                                               
officer] was  on duty  when he  picked up  one victim.  She added                                                               
that she believes  that this language covers  both on-duty police                                                               
officers  and  police  officers  who  are not  on  duty  and  are                                                               
behaving in  a certain way  toward individuals in the  custody of                                                               
the agency.                                                                                                                     
                                                                                                                                
SENATOR PASKVAN said he's trying  to understand the extent of the                                                               
prohibition.                                                                                                                    
                                                                                                                                
2:00:53 PM                                                                                                                    
SENATOR  WIELECHOWSKI noted  that  page 3,  line  9, says  "while                                                               
employed in  the state"  and he  reads that to  mean even  if the                                                               
person is not on duty.                                                                                                          
                                                                                                                                
SENATOR MCGUIRE stated agreement.                                                                                               
                                                                                                                                
CHAIR FRENCH  said that's right;  a police officer is  an officer                                                               
around  the  clock. Although,  he  added,  there  has to  be  the                                                               
element of custody or apparent  custody. The last clause is meant                                                               
pick up  the instance  where one  officer brought  a person  to a                                                               
police station and another officer found the person there.                                                                      
                                                                                                                                
CHAIR  FRENCH suggested  the committee  move on  but continue  to                                                               
consider whether or not to refine the mental element.                                                                           
                                                                                                                                
2:01:54 PM                                                                                                                    
MS. SMITH said the fifth change  that's reflected in version E is                                                               
the addition  of new Section 24.  It directs the DOL  to submit a                                                               
report  by  April 1,  2012,  to  the Legislature  concerning  the                                                               
number of arraignments that were  heard within 24 hours of arrest                                                               
and the number that took longer.                                                                                                
                                                                                                                                
CHAIR  FRENCH  added  that this  acknowledges  the  unease  about                                                               
moving to  the 48-hour window  for arraignments. The  report will                                                               
let  the Legislature  know within  a  year whether  48 hours  has                                                               
become the de  facto rule or if it's working  as expected and the                                                               
majority take place within 24 hours.                                                                                            
                                                                                                                                
MS.  CARPENETI said  the DOL  believes this  is a  good idea  but                                                               
would  like  an  additional  sentence asking  the  Department  of                                                               
Corrections  and the  Court System  to cooperate  in this  report                                                               
because that's where a lot of the information resides.                                                                          
                                                                                                                                
CHAIR FRENCH moved Conceptual Amendment 2.                                                                                      
                                                                                                                                
        Add language to Section 24 saying that the Department                                                                   
       of Corrections (DOC) and the Court System shall assist                                                                   
     the Department of Law (DOL) in compiling the report.                                                                       
                                                                                                                                
2:05:04 PM                                                                                                                    
SENATOR WIELECHOWSKI objected to suggest it say the governor.                                                                   
                                                                                                                                
MS. CARPENETI  pointed out that  the governor isn't in  charge of                                                               
the Court System.                                                                                                               
                                                                                                                                
SENATOR COGHILL stated a preference for naming the three.                                                                       
                                                                                                                                
CHAIR  FRENCH restated  the motion  for  Conceptual Amendment  2.                                                               
Finding no objection, he announced  that [Conceptual] Amendment 2                                                               
was adopted.                                                                                                                    
                                                                                                                                
2:06:02 PM                                                                                                                    
MS.  SMITH  added  that additional  small  conforming  amendments                                                               
appear throughout the sentencing section.                                                                                       
                                                                                                                                
CHAIR FRENCH  directed attention  to Section  21 relating  to the                                                               
provision  that   the  Legislature   adopted  last   year  giving                                                               
administrative subpoena  power to the attorney  general to obtain                                                               
identifying  records from  an  Internet  service provider  (ISP).                                                               
Page 11,  lines 15-18, set  out the identifying  information that                                                               
the  ISP will  provide. DOL  issued about  25 of  these subpoenas                                                               
last year and  the expectation is that that number  will climb to                                                               
100 this  year. The  bill that  came to  the committee  this year                                                               
extended  the  administrative  subpoena   power  to  an  attorney                                                               
general  designee.  Today  both  the  attorney  general  and  the                                                               
commissioner of  the Department of Public  Safety (DPS) advocated                                                               
strongly in  favor of extending  that subpoena power only  to the                                                               
deputy attorney general of the  criminal division of DOL. He said                                                               
he agreed to bring the idea to the committee.                                                                                   
                                                                                                                                
2:09:02 PM                                                                                                                    
SENATOR WIELECHOWSKI recalled  that when this power  was given to                                                               
the attorney  general concern, there  was concern  about granting                                                               
this  power to  a political  appointee  who is  in the  executive                                                               
branch.  As part  of an  independent judiciary,  judges typically                                                               
issue these  subpoenas so  this was  done in  a very  limited and                                                               
deliberate manner. "I  see no reason to change  that," he stated.                                                               
This  might not  rise to  the level  of search  and seizure,  but                                                               
Article 1, Section 14, is informative. It says:                                                                                 
                                                                                                                                
     The right of the people  to be secure in their persons,                                                                    
     houses and other property,  papers and effects, against                                                                    
     unreasonable  searches  and   seizures,  shall  not  be                                                                    
     violated. No  warrants shall  issue, but  upon probable                                                                    
     cause,   supported   by   oath  or   affirmation,   and                                                                    
        particularly describing the place to be searched and                                                                    
     the persons or things to be seized.                                                                                        
                                                                                                                                
SENATOR WIELECHOWSKI said  this is close to  a warrantless search                                                               
and  it's a  slippery slope  to extend  this authority  to anyone                                                               
other than the attorney general.                                                                                                
                                                                                                                                
SENATOR MCGUIRE  said she'd like to  hear from the DOL  as to the                                                               
basis  for  making  the  change.  Last  year  she  supported  the                                                               
provision as part  of cracking down on  Internet child predation,                                                               
but it was  a compromise for the attorney general  to oversee the                                                               
subpoena because it's something that  would typically go before a                                                               
judge. It  would be a big  step for this committee  to erode that                                                               
further, she stated.                                                                                                            
                                                                                                                                
2:12:26 PM                                                                                                                    
MS. CARPENETI said the bill  that passed last year didn't address                                                               
some  of the  concerns that  DOL initially  brought forward.  She                                                               
explained   that   the   reason    that   DOL   asked   for   the                                                               
[administrative] subpoena  power for the attorney  general was to                                                               
speed  the process  for collecting  account information  from the                                                               
ISP. She  clarified that a  person's house is not  searched based                                                               
on  the information  from  the ISP;  the  account information  is                                                               
presented to a judge in order  to obtain a search warrant for the                                                               
account  holder's house.  The provision  last  year provided  two                                                               
ways  to  serve  the  subpoena;  one method  of  service  was  by                                                               
certified mail and  the other was delivery by  a uniformed police                                                               
officer. That  isn't expedient in a  fast moving area of  the law                                                               
where people move computers and addresses very quickly.                                                                         
                                                                                                                                
The other concern that wasn't  adequately addressed last year was                                                               
delegation.  Having  just  one  individual  who  can  sign  these                                                               
administrative subpoenas  slows the process because  the attorney                                                               
general travels a lot and even when  he's in town and in the same                                                               
office building  it can be  difficult to track him  down. Signing                                                               
authority   for  these   subpoenas  should   fall  to   the  most                                                               
responsible  person  within  the  DOL, but  the  deputy  attorney                                                               
general for  the criminal division is  also extremely responsible                                                               
and  probably knows  more about  criminal law  and subpoenas  and                                                               
search  warrants  and probable  cause  issues  than the  attorney                                                               
general himself.                                                                                                                
                                                                                                                                
2:15:29 PM                                                                                                                    
RICK  SVOBODNY,  Deputy   Attorney  General,  Criminal  Division,                                                               
Department  of Law  (DOL) said  he  came forward  to clarify  the                                                               
question of  search and seizure.  He explained that  the identity                                                               
information that an Internet service  provider (ISP) holds is not                                                               
the   type   of   confidential  information   that   the   Alaska                                                               
Constitution  set  out  for  search   warrants,  although  it  is                                                               
information  that people  don't generally  think is  available to                                                               
the  public. Information  from  an ISP  is in  the  same area  as                                                               
cashing  a check  and  the U.S.  Supreme Court  has  said that  a                                                               
person gives up  any right of privacy once they  pass a check and                                                               
it becomes  part of  the public  record. If  there is  a criminal                                                               
case, there  will be a requirement  to get a search  warrant. The                                                               
information  obtained  from the  ISP  only  identifies where  the                                                               
particular  computer is  located.  It's the  information on  that                                                               
computer that will  be needed for a prosecution.  The police will                                                               
need to go  to a judicial officer and show  probable cause before                                                               
they  can  get a  search  warrant  to actually  enter  somebody's                                                               
property  or take  a piece  of property  like a  hard drive  on a                                                               
computer.  He  said   he  wanted  to  make   sure  the  committee                                                               
understood that issue.                                                                                                          
                                                                                                                                
2:17:45 PM                                                                                                                    
SENATOR PASKVAN asked  how many ISP searches did not  result in a                                                               
search warrant being issued by a judge.                                                                                         
                                                                                                                                
MR. SVOBODNY  said he didn't have  an answer, but the  real issue                                                               
is timeliness.  That was the  basis for DOL initially  saying the                                                               
administrative subpoena  authority should  extend to  an attorney                                                               
general  designee.  He added  that  the  DOL  would like  to  use                                                               
technology like  faxes and emails  which would be ahead  of where                                                               
the court is as far as the issuance of search warrants.                                                                         
                                                                                                                                
SENATOR PASKVAN questioned whether  there would be any timesaving                                                               
whatsoever if the  officer still had to do the  work to establish                                                               
probable cause before  getting a search warrant from  a judge. In                                                               
any event, there  are more judges than an attorney  general and a                                                               
deputy  attorney general  so it  seems that  the numbers  problem                                                               
would be solved by looking to the judiciary, he stated.                                                                         
                                                                                                                                
MR.  SVOBODNY said  that's a  question for  Commissioner Masters,                                                               
but his experience  in getting search warrants is  that they take                                                               
a  lot of  time. In  part  that's because  judges are  used to  a                                                               
presentation that  is different  than this  type of  subpoena. He                                                               
noted that  when he was a  DA he always preferred  for an officer                                                               
to go to  the court to testify under oath.  That's not necessary,                                                               
he said, but affidavits take time too.                                                                                          
                                                                                                                                
2:21:56 PM                                                                                                                    
SENATOR  WIELECHOWSKI  asked  what the  accountability  would  be                                                               
under this  provision if  an attorney  general or  their designee                                                               
issued subpoenas  without good reason. For  example, the attorney                                                               
general issuing  subpoenas for  an IP  address because  he didn't                                                               
like certain emails going to the governor.                                                                                      
                                                                                                                                
MR.  SVOBODNY said  in order  for  an action  to get  to court  a                                                               
search warrant  is needed to  do the investigation.  The subpoena                                                               
to  get the  IP  address would  be  part of  the  process of  the                                                               
application for the search warrant  and would therefore always be                                                               
available for review by the person charged with the crime.                                                                      
                                                                                                                                
CHAIR FRENCH clarified for the  record that the subpoena is being                                                               
issued  in   connection  with  a   violation  of   AS  11.41.452,                                                               
11.41.455, or AS  11.61.125 - 128. He added  that these subpoenas                                                               
were  first  authorized last  year  and  he  wants to  keep  them                                                               
tightly focused because criminal cases are built on them.                                                                       
                                                                                                                                
2:24:47 PM                                                                                                                    
JOE  MASTERS, Commissioner  Department  of  Public Safety  (DPS),                                                               
explained that the current process  requires two search warrants.                                                               
The  first search  warrant is  to  discover the  location of  the                                                               
computer where the activity took  place. That information is used                                                               
to apply for  a second search warrant that  authorizes the actual                                                               
search of the property or  computer. The new system authorizes an                                                               
administrative subpoena for the first step.                                                                                     
                                                                                                                                
SENATOR  PASKVAN  asked  about   the  potential  for  a  one-step                                                               
judicial process; the judge authorizes  getting the location from                                                               
the ISP and subsequent search of the computer.                                                                                  
                                                                                                                                
COMMISSIONER  MASTERS replied  it's often  more complicated.  For                                                               
example, the ISP location could be  an Internet café and it could                                                               
belong  to the  owner  of the  Internet café  or  someone who  is                                                               
frequenting the Internet café.                                                                                                  
                                                                                                                                
CHAIR FRENCH  commented that  the public  defenders would  have a                                                               
field day  with a search warrant  that asked to know  who owns an                                                               
account and permission to search wherever they might be found.                                                                  
                                                                                                                                
COMMISSIONER  MASTERS noted  that Sergeant  DeGraaf and  Sergeant                                                               
Wilson were available online to answer specific questions.                                                                      
                                                                                                                                
SENATOR COGHILL said  he'd like to hear from  Sergeant DeGraaf on                                                               
how often  it would work to  get a single search  warrant for the                                                               
two elements.                                                                                                                   
                                                                                                                                
2:29:28 PM                                                                                                                    
SERGEANT  DEREK DEGRAAF,  Alaska  State  Troopers, Department  of                                                               
Public Safety (DPS),  said he didn't believe  that approach would                                                               
work and warned  that in most circumstances it  would cause legal                                                               
issues.                                                                                                                         
                                                                                                                                
SENATOR  COGHILL asked  if  other proof  is  needed to  establish                                                               
probable cause to get the first search warrant for an ISP.                                                                      
                                                                                                                                
SERGEANT  DEGRAAF explained  that the  initial probable  cause is                                                               
based on  an investigator connecting  to the suspect  through his                                                               
IP address and downloading child  pornography from that computer.                                                               
Once  law enforcement  connects  to the  suspect's computer  they                                                               
download some of the files and  verify that those meet the Alaska                                                               
statutes  for  the  possession   and  or  distribution  of  child                                                               
pornography.   The   police   approach  the   court   with   that                                                               
information.                                                                                                                    
                                                                                                                                
SENATOR COGHILL asked  about working with the courts  to make the                                                               
probable cause  process for  these Internet  cases a  little more                                                               
straightforward. The  proposed attorney general  solution appears                                                               
to further complicate the process.                                                                                              
                                                                                                                                
CHAIR FRENCH responded  that it's not supposed to be  easy to get                                                               
a  search  warrant,  but  he  believes  that  the  administrative                                                               
subpoena  strikes a  balance  to  help nail  down  who the  child                                                               
pornography belongs to. He asked  the members if anyone wanted to                                                               
propose an amendment.                                                                                                           
                                                                                                                                
SENATOR COGHILL asked if DOL was asking for a specific designee.                                                                
                                                                                                                                
CHAIR FRENCH  replied they'd like  to insert "or  deputy attorney                                                               
general for  the criminal division" following  "attorney general"                                                               
on page  11, line 9.  Conforming language would be  necessary. He                                                               
asked if any member wanted to offer the amendment.                                                                              
                                                                                                                                
2:35:31 PM                                                                                                                    
SENATOR MCGUIRE moved Amendment 3.                                                                                              
                                                                                                                                
     Page 11, line 9, following "general"                                                                                       
          Insert "or deputy attorney general for the                                                                            
     criminal division"                                                                                                         
     [Make conforming changes accordingly.]                                                                                     
                                                                                                                                
SENATOR MCGUIRE said  she has a healthy respect for  the right to                                                               
privacy  and she  believes this  process upholds  that right.  It                                                               
doesn't  change  the  important step  of  demonstrating  probable                                                               
cause  before a  judge  in order  to get  a  search warrant.  The                                                               
reason for  the administrative subpoena  is timeliness;  in these                                                               
cases  in  particular the  evidence  can  disappear quickly.  She                                                               
expressed confidence  in delegating this authority  to the deputy                                                               
attorney general  for the criminal  division. That is  a licensed                                                               
attorney who has sworn an oath  and is accountable to the public,                                                               
the Legislature, and the attorney general.                                                                                      
                                                                                                                                
2:39:03 PM                                                                                                                    
SENATOR WIELECHOWSKI  said it was a  big step last year  to grant                                                               
administrative subpoena authority to  the attorney general and to                                                               
extend  that authority  further is  to head  down the  proverbial                                                               
slippery slope. "We're  already very close to the  border, if not                                                               
having crossed it  already, on violating Article I  Section 14 of                                                               
the constitution," he stated.                                                                                                   
                                                                                                                                
2:40:25 PM                                                                                                                    
SENATOR PASKVAN  said part  of the debate  is whether  to abandon                                                               
the two-branch concept and have  just one branch of government do                                                               
both the  search warrant and the  prosecution. Acknowledging that                                                               
there would  be anomalies,  he said he  wasn't convinced  at this                                                               
point that  a judge couldn't,  with sufficient  evidence, execute                                                               
just one  search warrant  for everything that  needs to  be done.                                                               
The  concept  of  cloaking  an  attorney general,  who  is  in  a                                                               
prosecutorial role, in a judge's role is troubling, he stated.                                                                  
                                                                                                                                
2:42:28 PM                                                                                                                    
SENATOR COGHILL said  he has some of the same  discomfort, but he                                                               
would support  the amendment. There  is still the  requirement to                                                               
go  before a  court, but  the information  that is  gathered from                                                               
these administrative  subpoenas is  more a law  enforcement issue                                                               
than a court issue, he stated.                                                                                                  
                                                                                                                                
2:43:50 PM                                                                                                                    
A roll  call vote  was taken on  proposed Amendment  3.  Senators                                                               
McGuire and  Coghill voted in  favor of Amendment 3  and Senators                                                               
Wielechowski,  Paskvan and  French voted  against it.  Therefore,                                                               
Amendment 3 failed by a vote of 2-3.                                                                                            
                                                                                                                                
2:44:26 PM                                                                                                                    
CHAIR  FRENCH noted  that  proposed Amendment  4  was by  Senator                                                               
Wielechowski.                                                                                                                   
                                                                                                                                
SENATOR WIELECHOWSKI moved [Conceptual]  Amendment 4, labeled 27-                                                               
LS8004\A.1.  He  explained  that   this  gives  judges  statutory                                                               
authority to prohibit a sex  offender from living within 500 feet                                                               
of school  grounds as  a condition of  parole or  probation. This                                                               
troubling issue  came up  in Anchorage this  past summer  and the                                                               
reflex reaction  was to  ban all sex  offenders from  living near                                                               
schools regardless of circumstances.  Other states have done that                                                               
and  the evidence  indicates  that it  hasn't  worked very  well.                                                               
Blanket  prohibitions  can  worsened  the  situation  because  it                                                               
confines sex  offenders to certain  areas of a  community. Giving                                                               
judges  the  authority to  make  individual  determinations is  a                                                               
reasonable balanced approach to resolve this issue.                                                                             
                                                                                                                                
                     [CONCEPTUAL] AMENDMENT 4                                                                                   
                                                                                                                                
     Page ___, line ___:                                                                                                        
          Insert "and relating to conditions of probation in                                                                  
     criminal cases involving sex offenses;"                                                                                  
                                                                                                                                
     Page ___, line ___:                                                                                                        
     Insert a new bill section to read:                                                                                         
        "* Sec. ___. AS 12.55.100(e) is amended to read:                                                                    
          (e)  In addition to other conditions imposed on the                                                                   
     defendant,  while  on  probation   and  as  a  condition  of                                                               
     probation                                                                                                                  
               (1)  for a sex offense, as described in                                                                          
     AS 12.63.100, the defendant                                                                                                
               (A)  shall be required to submit to regular                                                                      
     periodic polygraph examinations;                                                                                           
               (B)  may be required to provide each electronic                                                                  
     mail address, instant messaging  address, and other Internet                                                               
     communication  identifier that  the  defendant  uses to  the                                                               
     defendant's probation  officer; the probation  officer shall                                                               
     forward those addresses and identifiers  to the Alaska state                                                               
     troopers and to the local law enforcement agency;                                                                          
               (2)  if the defendant was convicted of a                                                                         
     violation  of  AS 11.41.434   -  11.41.455,  AS 11.61.125  -                                                               
     11.61.128,  or a  similar offense  in another  jurisdiction,                                                               
     the defendant may be required to refrain from                                                                              
              (A)  using or creating an Internet site;                                                                          
               (B)  communicating with children under 16 years                                                                  
     of age; [OR]                                                                                                               
               (C)  possessing or using a computer; or                                                                      
               (D)  residing within 500 feet of school grounds;                                                             
     in  this  subparagraph,  "school grounds"  has  the  meaning                                                           
     given in AS 11.71.900."                                                                                                
                                                                                                                                
     Renumber the following bill sections accordingly                                                                           
                                                                                                                                
CHAIR FRENCH objected for discussion purposes and stated that he                                                                
appreciates the amendment and the fact that it doesn't make a blanket                                                           
prohibition. It strikes a nice balance.                                                                                         
                                                                                                                                
SENATOR MCGUIRE  echoed support for  the amendment. The  judge is                                                               
able  to craft  the  right balance  as  he or  she  puts the  sex                                                               
offender back into society. The  list of discretionary tools that                                                               
a judge  might use  for sex  offenders could be  added to  in the                                                               
future, she said.                                                                                                               
                                                                                                                                
CHAIR  FRENCH removed  his objection  and announced  that without                                                               
further objection Amendment 4 was adopted.                                                                                      
                                                                                                                                
2:48:39 PM                                                                                                                    
CHAIR FRENCH asked Mr. Brenner  to explain the proposed Amendment                                                               
5.                                                                                                                              
                                                                                                                                
2:49:08 PM                                                                                                                    
DAVID BRENNER,  Staff to Representative  Pete Peterson,  said the                                                               
proposed amendment  makes the installation of  a keystroke logger                                                               
or using wireless  means to log keystrokes on  a computer illegal                                                               
when  there is  no right  to  access. It's  currently illegal  to                                                               
obtain personal information via software  or spyware but it's not                                                               
illegal to obtain information as  it's entered into the computer.                                                               
It shouldn't matter  how information is stolen  from the computer                                                             
because the  victim's privacy  is violated in  any case.  The law                                                               
should recognize this.                                                                                                          
                                                                                                                                
2:50:08 PM                                                                                                                    
CHAIR FRENCH  moved proposed Amendment 5,  labeled 27-LS8004\A.2,                                                               
and objected for discussion purposes.                                                                                           
                                                                                                                                
                      [CONCEPTUAL] AMENDMENT 5                                                                                  
                                                                                                                                
     Page ___, line ___, following "information;":                                                                            
          Insert "making the installation, enabling, or use                                                                   
        of keystroke loggers or other devices criminal use of                                                                 
     a computer;"                                                                                                             
                                                                                                                                
     Page ___, following line ___:                                                                                              
          Insert a new bill section to read:                                                                                    
        "* Sec. ___. AS 11.46.740(a) is amended to read:                                                                  
          (a)  A person commits the offense of criminal use                                                                     
          of a computer if, having no right to do so or any                                                                     
         reasonable ground to believe the person has such a                                                                     
     right, the person knowingly                                                                                                
               (1)  accesses, causes to be accessed, or                                                                     
     exceeds the  person's authorized access to  a computer,                                                                    
     computer  system, computer  program, computer  network,                                                                    
     or any part of a computer  system or network, and, as a                                                                    
     result of or in the course of that access,                                                                                 
                    (A)    [(1)]       obtains   information                                                                
          concerning a person;                                                                                                  
                    (B) [(2)]  introduces false information                                                                 
          into   a  computer,   computer  system,   computer                                                                    
          program, or  computer network  with the  intent to                                                                    
          damage  or   enhance  the   data  record   or  the                                                                    
          financial reputation of a person;                                                                                     
                    (C) [(3)]  introduces false information                                                                 
          into   a  computer,   computer  system,   computer                                                                    
          program,  or computer  network and,  with criminal                                                                    
          negligence,  damages or  enhances the  data record                                                                    
          or the financial reputation of a person;                                                                              
                    (D)    [(4)]       obtains   proprietary                                                                
          information of another person;                                                                                        
                    (E) [(5)]  obtains information that is only                                                             
          available to the public for a fee;                                                                                    
                    (F) [(6)]  introduces instructions, a                                                                   
          computer  program, or  other  information that  tampers                                                               
          with,  disrupts,  disables,  or  destroys  a  computer,                                                               
          computer  system, computer  program, computer  network,                                                               
          or any part of a computer system or network; or                                                                       
                    (G) [(7)]  encrypts or decrypts data; or                                                            
               (2)  installs, enables, or uses a keystroke                                                                  
          logger or other device or  program that has the ability                                                           
          to record  another person's keystrokes or  entries on a                                                           
          computer; or                                                                                                      
               (3)  uses a keystroke logger or other device or                                                              
          program  to   intercept  or  record   another  person's                                                           
          keystrokes or entries on a  computer when those entries                                                           
          are  transmitted  wirelessly   or  by  other  non-wired                                                           
          means."                                                                                                           
                                                                                                                                
     Renumber the following bill sections accordingly.                                                                          
                                                                                                                                
SENATOR  WIELECHOWSKI  asked  if   there  was  a  definition  for                                                               
computer and if it would include a smart phone.                                                                                 
                                                                                                                                
MR. BRENNER said he wasn't sure,  but it's under the criminal use                                                               
of a computer in current statute.                                                                                               
                                                                                                                                
CHAIR FRENCH  said this adds a  new provision to the  existing AS                                                               
11.46.740(a)  relating  to  the  variety  of  ways  for  using  a                                                               
computer for criminal  purposes. He asked Mr. Brenner  if he knew                                                               
of any recent prosecutions involving keystroke loggers.                                                                         
                                                                                                                                
MR.  BRENNER replied  the Anchorage  Police Department  (APD) has                                                               
had  some complaints  about  keystroke loggers,  but  it isn't  a                                                               
crime so  it wasn't  pursued. He noted  that law  enforcement and                                                               
Alaska  Cabaret,  Hotel,   Restaurant  &  Retailer's  Association                                                               
(CHARR)  sent   letters  of   support.  The   business  community                                                               
recognizes that this is a growing problem.                                                                                      
                                                                                                                                
CHAIR FRENCH asked if the DOL had seen this language.                                                                           
                                                                                                                                
MR. BRENNER replied he worked  with Ms. Carpeneti on the language                                                               
and to his knowledge the DOL had no objection.                                                                                  
                                                                                                                                
SENATOR  WIELECHOWSKI related  that  he found  the definition  of                                                               
"computer" in AS 11.46.990 and it seems fairly broad.                                                                           
                                                                                                                                
2:52:44 PM                                                                                                                    
CHAIR  FRENCH removed  his objection  and announced  that without                                                               
further objection Amendment 5 was adopted.                                                                                      
                                                                                                                                
2:53:06 PM                                                                                                                    
CHAIR FRENCH closed public testimony  on HB 127 and announced the                                                               
committee  would  stand  in  recess  to the  call  of  the  chair                                                               
awaiting a CS that incorporated the foregoing amendments.                                                                       

Document Name Date/Time Subjects