Legislature(2001 - 2002)
04/06/2001 01:14 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 6, 2001
1:14 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative Jeannette James
Representative John Coghill
Representative Kevin Meyer
Representative Albert Kookesh
MEMBERS ABSENT
Representative Scott Ogan, Vice Chair
Representative Ethan Berkowitz
COMMITTEE CALENDAR
HOUSE BILL NO. 143
"An Act relating to the deoxyribonucleic acid (DNA)
identification registration system."
- MOVED CSHB 143(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 121
"An Act relating to the issuance of qualified charitable gift
annuities."
- MOVED CSHB 121(L&C) OUT OF COMMITTEE
HOUSE BILL NO. 125
"An Act relating to unlawful and indecent viewing and
photography and to civil damages and penalties for that viewing
and photography."
- HEARD AND HELD
HOUSE BILL NO. 196
"An Act establishing a right of action for a legal separation;
and amending Rule 42(a), Alaska Rules of Civil Procedure."
- HEARD AND HELD
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 120
"An Act adopting the National Crime Prevention and Privacy
Compact; making criminal justice information available to
interested persons and criminal history record information
available to the public; making certain conforming amendments;
and providing for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
BILL: HB 143
SHORT TITLE:DNA DATABASE
SPONSOR(S): REPRESENTATIVE(S)MURKOWSKI
Jrn-Date Jrn-Page Action
02/23/01 0415 (H) READ THE FIRST TIME -
REFERRALS
02/23/01 0415 (H) JUD
02/28/01 0473 (H) COSPONSOR(S): DYSON
04/06/01 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 121
SHORT TITLE:CHARITABLE GIFT ANNUITIES
SPONSOR(S): REPRESENTATIVE(S)MURKOWSKI
Jrn-Date Jrn-Page Action
02/09/01 0281 (H) READ THE FIRST TIME -
REFERRALS
02/09/01 0281 (H) L&C, JUD
02/14/01 0328 (H) COSPONSOR(S): STEVENS
03/14/01 (H) L&C AT 3:15 PM CAPITOL 17
03/14/01 (H) Moved CSHB 121(L&C) Out of
Committee
MINUTE(L&C)
03/26/01 0724 (H) L&C RPT CS(L&C) 5DP 2NR
03/26/01 0725 (H) DP: KOTT, HAYES, MEYER,
ROKEBERG,
03/26/01 0725 (H) MURKOWSKI; NR: HALCRO,
CRAWFORD
03/26/01 0725 (H) FN1: ZERO(CED)
04/06/01 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 125
SHORT TITLE:UNLAWFUL VIEWING
SPONSOR(S): REPRESENTATIVE(S)KOTT
Jrn-Date Jrn-Page Action
02/12/01 0297 (H) READ THE FIRST TIME -
REFERRALS
02/12/01 0297 (H) JUD, FIN
02/12/01 0297 (H) REFERRED TO JUDICIARY
02/26/01 0444 (H) COSPONSOR(S): DYSON
04/06/01 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 196
SHORT TITLE:RIGHT OF ACTION FOR LEGAL SEPARATION
SPONSOR(S): REPRESENTATIVE(S)DYSON
Jrn-Date Jrn-Page Action
03/19/01 0649 (H) READ THE FIRST TIME -
REFERRALS
03/19/01 0649 (H) JUD
03/19/01 0649 (H) REFERRED TO JUDICIARY
04/06/01 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE LISA MURKOWSKI
Alaska State Legislature
Capitol Building, Room 408
Juneau, Alaska 99801
POSITION STATEMENT: Testified as sponsor of HB 143 and HB 121.
GEORGE TAFT, Director
Scientific Crime Detection Laboratory
Department of Public Safety
5500 East Tudor Road
Anchorage, Alaska 99507-1221
POSITION STATEMENT: Testified that the state crime lab has the
latest DNA technology available and is prepared to handle the
increased workload from HB 143.
MARK MEW, Deputy Chief
Anchorage Police Department (APD)
Municipality of Anchorage
PO Box 196650
Anchorage, Alaska 99519
POSITION STATEMENT: Expressed the APD's enthusiasm for HB 143
and answered questions.
JOHN McKINNON, Officer
Anchorage Police Department
Municipality of Anchorage
PO Box 196650
Anchorage, Alaska 99519
POSITION STATEMENT: Testified that HB 143 balances the
preservation of public safety and liberty.
JENNIFER RUDINGER, Executive Director
Alaska Civil Liberties Union (AkCLU)
PO Box 201844
Anchorage, Alaska 99520-1844
POSITION STATEMENT: Stated support for voluntary collection of
DNA and acknowledged reasons to collect DNA for sex offenses,
but expressed concerns about HB 143, relating her testimony to
SB 99 as well; requested amendment so that samples are destroyed
once the information is in the database. During discussion of
HB 125, expressed concerns regarding free speech, the First
Amendment, and the expanded definition of "picture."
DEL SMITH, Deputy Commissioner
Department of Public Safety
PO Box 111200
Juneau, Alaska 99811-1200
POSITION STATEMENT: Testified in support of the proposed
committee substitute for HB 143 and answered questions.
ROBERT BUTTCANE, Legislative & Administrative Liaison
Division of Juvenile Justice
Department of Health & Social Services
PO Box 110635
Juneau, Alaska 99811-0635
POSITION STATEMENT: Testified in support of HB 143; said there
would be no programmatic or fiscal impact on the current system.
During discussion of HB 125, expressed concerns and answered
questions.
JEROME SELBY
Providence Health System in Alaska
9100 Centennial
Anchorage, Alaska 99504
POSITION STATEMENT: Testified on HB 121.
JON CALDER, Director
Annual & Planned Giving
Providence Alaska Foundation
3200 Providence Drive
Anchorage, Alaska 99508
POSITION STATEMENT: Testified on HB 121.
GLORIA GLOVER, Chief Financial Examiner
Anchorage Field Office
Division of Insurance
Department of Community & Economic Development
3601 C Street, Suite 1324
Anchorage, Alaska 99503
POSITION STATEMENT: Testified in support of CSHB 121(L&C).
DENISE HENDERSON, Staff
to Representative Pete Kott
Alaska State Legislature
Capitol Building, Room 204
Juneau, Alaska 99801
POSITION STATEMENT: Presented HB 125 on behalf of
Representative Kott, the sponsor.
ALVIA "STEVE" DUNNAGAN, Lieutenant
Division of Alaska State Troopers (AST)
Department of Public Safety (DPS)
5700 East Tudor Road
Anchorage, Alaska 99507
POSITION STATEMENT: Answered questions relating to HB 125.
JERRY LUCKHAUPT, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency
Terry Miller Building, Room 329
Juneau, Alaska 99801-1182
POSITION STATEMENT: Speaking as the drafter, answered questions
on HB 125.
ACTION NARRATIVE
TAPE 01-57, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting to order at 1:14 p.m. Members present at the
call to order were Representatives Rokeberg, James, Coghill, and
Meyer. Representative Kookesh arrived as the meeting was in
progress.
HB 143 - DNA DATABASE
[Contains testimony relating to SB 99.]
Number 0239
CHAIR ROKEBERG announced the first order of business, HOUSE BILL
NO. 143, "An Act relating to the deoxyribonucleic acid (DNA)
identification registration system." [In packets was a proposed
committee substitute (CS), version 22-LS0234\F, Luckhaupt,
3/14/01.]
Number 0250
REPRESENTATIVE LISA MURKOWSKI, Alaska State Legislature,
sponsor, explained that HB 143 is similar to legislation from
the previous session; however, the previous bill didn't include
burglary in the list of offenses for which samples would be
collected. Currently under statute the state can collect DNA
samples from those convicted of crimes against a person:
assault, rape, kidnapping, murder, child sexual abuse, robbery,
stalking, indecent exposure, extortion, coercion, and first-
degree arson. What HB 143 does is add burglary to the list.
REPRESENTATIVE MURKOWSKI told members they probably would hear
arguments regarding the numbers; however, statistics she has
seen prove that 50 percent of those who commit burglary - a so-
called crime of convenience - later commit violent crimes. If
the state can get [DNA] identification from those committing
burglary, the belief is that it will help to identify, solve, or
prevent certain violent crimes.
REPRESENTATIVE MURKOWSKI informed members that George Taft,
director of the state crime lab, was online to testify that day.
She encouraged members to tour the lab facilities to see how
they operate and input the data. She told members that Deputy
Commissioner Smith from the Department of Public Safety (DPS)
would address the process as well.
CHAIR ROKEBERG noted the arrival of Representative Kookesh.
Referring to a chart in committee packets that shows the DNA
database laws from all 50 states in relationship to various
felonies, he observed that burglary is the only such offense not
included for Alaska currently.
REPRESENTATIVE MURKOWSKI affirmed that, adding that other
charts, not included in packets, show how various states are
dealing with the expansion to their DNA databases. She reported
that all states require DNA samples for sex offenses; 35 states,
including Alaska, require samples for murder and for assault and
battery; and 24 require samples for burglary. The inclusion of
burglary in the list of violent crimes is something that more
and more states are looking at.
CHAIR ROKEBERG pointed out that the chart in packets says 18
states [include burglary, rather than the 24 mentioned].
REPRESENTATIVE MURKOWSKI explained that the chart is from June
2000; it is an older listing.
CHAIR ROKEBERG commented that it clearly shows a trend of other
states' adopting the standard being requested [in HB 143].
Number 0628
GEORGE TAFT, Director, Scientific Crime Detection Laboratory,
Department of Public Safety, testified via teleconference. He
informed members that the laboratory is prepared to handle the
workload, should HB 143 pass. He pointed out that the figure of
24 states [with burglary on the inclusion list] has recently
increased to 26 states. Mr. Taft reported that the laboratory
is performing the latest DNA testing available, called "STR" for
"short tandem repeat," a highly specific and accurate process
that can identify individuals with one-in-a-billion [accuracy].
Number 0738
MARK MEW, Deputy Chief, Anchorage Police Department (APD),
Municipality of Anchorage, testified via teleconference, noting
that with him was Officer John McKinnon, the "point man" on the
project. He informed members that the APD is "very
enthusiastic" about HB 143; the APD was also enthusiastic about
the previous legislation, he said, and wanted burglary
[included] at that time, as well.
DEPUTY CHIEF MEW explained that his department has an interest
in generating as large a database of criminals as possible, and
sees a direct relationship between burglary and other crimes.
He pointed out that different statistics exist from using
different methodologies, but all correlate burglary with other
crimes; in particular, he said, he was thinking of sexual
assaults. The APD believes that including burglars in the DNA
database will assist the department to stop serial criminals
early in their careers, he told members, thereby saving the
taxpayers money and shortening investigation time.
REPRESENTATIVE JAMES asked what the APD's calculated percentage
is for burglars who go on to commit other crimes.
DEPUTY CHIEF MEW replied that he is aware of three different
numbers from three [sources]. First, he has been told that in
Florida the figure is somewhere around 25 percent. Second, he
is aware of an FBI [Federal Bureau of Investigation] study that
used a different methodology, interviewing serial rapists, and
came up with a figure closer to 50 percent for people who had
committed property crimes - specifically, burglary - beforehand.
DEPUTY CHIEF MEW said third, "we" made some effort to calculate
the same statistics in Alaska, and the number was "quite a bit
lower than that," presumably because juvenile records are kept
separately from adult records, and thus juvenile burglary
convictions were not being picked up as they related to violent
crimes committed by the same juveniles after they became adults;
[the APD] is working now with the [Division of] Juvenile Justice
to backtrack regarding some of those names. Right now, he
noted, that statistic is lower than 50 percent, which he
suggested Deputy Commissioner Smith could speak to. He added
that he thinks 25 percent is probably [a reasonable estimate] in
terms of rapists who have prior burglary convictions.
Number 0963
REPRESENTATIVE JAMES mentioned her own accounting background,
saying she was having difficulty establishing that percentage if
one is figuring out how many [perpetrators of violent crimes]
started as burglars, as opposed to figuring out how many violent
criminals have done burglaries. She suggested that the two
answers wouldn't necessarily be the same.
DEPUTY CHIEF MEW replied that in order to make it work, the
individuals, not the number of crimes, must be counted. There
are many burglaries for which the perpetrator is unknown.
Therefore, the criminal histories of the people who have been
convicted of the violent crimes must be tracked backward through
time to see how many had convictions for burglaries. He
emphasized that these statistics are for convictions, rather
than for a charge of burglary that is pled down to vandalism,
for example.
DEPUTY CHIEF MEW explained that part of the difficulty in
comparing one state's statistics to another's is because the
methodology and the statutory definitions of the crimes may
differ, widely affecting the results of a study. "We're trying
to come up with an apples-to-apples comparison right now," he
added, "but our data isn't coming in as fast as you guys are
holding hearings, so I can't nail down a number for you; I
apologize for that."
REPRESENTATIVE JAMES said she can understand the difficulty in
analyzing it because one can only analyze backward in time,
whereas the legislation projects forward in time, using that
assumption.
Number 1109
REPRESENTATIVE MEYER noted that his own question was similar to
that of Representative James. He referred to a handout provided
by Representative Murkowski regarding a study done in Virginia
which showed that 40 percent of the men who were ultimately
arrested for rape began their criminal careers with property
crimes such as burglar and petty theft. He asked how this would
"track" in Alaska.
DEPUTY CHIEF MEW noted that the FBI [study] said 50 percent had
done property crimes including those such as burglary; he
cautioned that "property crimes" includes more than just
burglary. He concluded, "I think that we're the same as all the
other states. I'm just unable right now to prove it to you with
the hard [numbers]."
CHAIR ROKEBERG remarked that one benefit of having [DNA]
evidence available is that it can help a potential defendant who
is innocent of the crime, just as it can convict [someone who is
guilty].
DEPUTY CHIEF MEW concurred, pointing out that some people have
been released from prison after serving lengthy sentences
because [of being exonerated] by DNA technology. He called it
an objective test.
CHAIR ROKEBERG asked whether the APD has found it helps in
investigations.
DEPUTY CHIEF MEW replied that [the APD] uses DNA "all the time";
it is particularly valuable in sexual assault cases. He
explained that [DNA] is good physical evidence that can "break"
an alibi or help get a confession. In sexual assault, it used
to be a matter of proving whether or not sex occurred to begin
with; now, however, it is usually a matter of just proving
whether it was "successful" because the first part of the
argument is pretty much settled by the DNA. It also helps in
homicides and even in burglary cases when a burglar gets cut by
glass and leaves blood behind [at the scene]. Deputy Chief Mew
commented that there may be serial burglars who haven't
graduated to other crimes in the database today, "and two years
from now they'll leave blood behind at the scene, and we may
close up even our own burglary cases [using this] technology."
Number 1260
REPRESENTATIVE COGHILL returned to Deputy Chief Mew's caution
that [different crimes] may have different standards and
definitions in other states' statutes. Representative Coghill
remarked that there is a "privacy wall" that must be protected
in order to avoid misusing this information. He said right now,
he doesn't have any fear that the state itself or the current
generation will misuse it; he expressed concern, however, that
future generations will have a lot of information available. He
asked whether, right now, there could be people who are
inadvertently "caught up" because of the definition of burglary
[in HB 143] - people who will have DNA samples collected but who
really shouldn't be in that [database].
DEPUTY CHIEF MEW answered:
Our definition of burglary here, I think, is fairly
consistent with traditional burglary definitions: ...
you have to enter or remain illegally with the intent
to commit a crime. It's much higher than just
vandalizing something or just stealing something.
It's not stealing hubcaps off a car. It's not
shoplifting out of a store that's open to the public.
It's a fairly high level of crime ....
And if you're charged with burglary, but ... to avoid
the necessities of trial the [district attorney]
allows you to plead guilty to something lesser such as
trespass or theft or vandalism, we're not going to be
collecting a sample under this law. You have to have
the conviction for burglary, not the charge. Unless
the legislature wants to change that down the road,
that's what we're asking for, and that's what we'll be
held to - and it's a fairly high standard.
DEPUTY CHIEF MEW, in further response to Representative Coghill,
pointed out that if the standard were a charge of burglary,
rather than a conviction, the bill would be "catching" many
people. Requiring a conviction not only narrows the number of
people, but also raises the burden of proof.
Number 1392
JOHN McKINNON, Officer, Anchorage Police Department,
Municipality of Anchorage, testified via teleconference. He
noted that "law enforcement is tasked with balancing many public
issues" including balancing public safety with "liberty for
all." He suggested that some opponents of this bill, by
contrast, may have the task of [protecting] only one area, such
as liberty. He said HB 143 meets both of these challenges: it
enhances the ability of law enforcement to promote and preserve
public safety while enhancing and furthering leads in criminal
investigation. In addition, HB 143 will [protect] people from
false convictions when they are innocent of a crime.
OFFICER McKINNON reported that according to at least one study,
conducted by the National Institute of Justice, violent crimes
such as sexual assault are the most expensive for society;
considering all the factors of medical and mental care, loss of
productivity, and decreased quality of life, [the study]
estimated the average cost of one crime to be nearly $87,000.
Officer McKinnon told members that with the enactment of HB 143,
having a suspect's DNA in the registry possibly could lessen the
damage to individual citizens and reduce the cost to government.
Number 1491
JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties
Union (AkCLU), testified via teleconference, noting that the
AkCLU is a statewide organization whose mission is to defend and
protect the guarantees of individual liberty found in the Bill
of Rights and in Alaska's constitution. She said [the AkCLU]
hears almost daily from people across the state who have various
concerns about civil liberties; by far, the biggest categories
of cases brought to her attention in her four years as director
have been from people concerned about the government's demand
for more and more personal information, whether that information
regards genetics, social security [numbers], or personal
backgrounds. She informed members that she would, therefore,
focus on personal privacy in her testimony.
MS. RUDINGER said the AkCLU doesn't doubt that the sponsors of
both SB 99 and HB 143 have good intentions, nor does the AkCLU
question DNA's accuracy for identification or its value to
exonerate the innocent; in fact, [the American Civil Liberties
Union] is advocating, in states nationwide and at the federal
level, that whenever someone is convicted of a crime that
carries the death penalty, DNA - if it existed at the crime
scene - should be allowed for testing before the [convicted]
person is executed. Therefore, the AkCLU wouldn't oppose
voluntary collection of DNA. In fact, if someone is innocent,
that person's lawyer should ask for a DNA test.
Number 1585
MS. RUDINGER pointed out that HB 143, by contrast, establishes
mandatory collection of DNA. She stressed the importance of
asking whether [this mandatory collection] is justified in
Alaska. She said:
We're not talking about taking DNA from burglars in
Florida or Virginia. We're talking about taking DNA
from people in Alaska, and we started out with sex
offenders, as did most or all states. With sex
offenders, it's different, because sex offenders (a)
typically leave DNA at the crime scene, and (b) tend
to be recidivists; I think it's an 80 percent or a
little more than 80 percent recidivist rate - repeat
offenders.
So, then, it makes sense that if you take the DNA for
someone convicted of [a] sex offense, ... first of
all, you'll be able to identify them and convict them,
and down the road, if they're 80 percent likely to be
a repeat offender, ... law enforcement is more likely
to nab them. ... That seems to be justified. And we
were told, ... by the federal government when they
started this and by the states, ... "Well, ... here's
the justification with sex offenses." And whether we
completely agreed or not, we bought in to the argument
that it was justified.
Then the line moves. And the line keeps moving. And
so we have seen DNA collection moving from sex
offenses to all violent crimes, and in Alaska it is
currently very broad: it's all personal crimes. And
in other states it's gone into property crimes like
burglary. And then you start getting into states who
are taking it from anyone who's arrested for a crime -
not convicted. And finally, there have been proposals
by Rudy Giuliani [mayor of New York City] - and Janet
Reno [former U.S. Attorney General] thought this might
have some credibility - of taking DNA from newborns.
The line keeps moving. And every time that you
consider moving that line, we respectfully urge the
committee to ask yourselves whether it's justified.
Number 1672
MS. RUDINGER continued:
In Alaska, it's not 40 percent or 25 or 50 percent.
... The only data we have to go on says that only 6
percent of burglars - of the people from whom you are
taking DNA - do go on to commit a violent crime later;
... that means 94 percent do not.
This isn't like a fingerprint. I think we also have
to look at what we are seizing from a human being.
DNA, unlike fingerprinting, reveals information beyond
identification. It gives the government control over
a great deal of personal, private information, not
only about the person you get the DNA from - the
sample source - but from everyone related to that
person by blood, [including] information about some
4,000 genetic conditions and diseases, ethnicity,
family relationships, family history. This is a kind
of information that belongs to the person, not the
government, and you've got to really question whether
it's justified.
And beyond that, we're constantly finding new things
that we can learn from DNA. Geneticists are already
thinking that we might be able to detect sexual
orientation, tendency for substance abuse, so-called
criminal tendencies under the theory of the
"aggression gene." ... It may sound Orwellian, but
it's true, and it's constantly developing.
MS. RUDINGER noted that confusion arises because two different
kinds of data are taken from the DNA. The first, which looks
like a barcode, is what is entered into the national database,
CODIS [Combined DNA Index System].
MS. RUDINGER explained that the 13 specific genetic markers
taken from the DNA chain, which are put into CODIS, are like a
genetic fingerprint; with today's technology, the only
information one can get from that "barcode" in the database is
identification and maybe gender. However, the AkCLU and
Alaskans are largely concerned about the other set of data - the
drop of blood or saliva itself - because nothing in federal or
Alaskan law requires that the sample be destroyed.
MS. RUDINGER noted that she had provided additional written
testimony. She concluded by requesting that the sponsor
consider amending HB 143 so that once testing is completed and
the data is entered into the database - which is 99.9 percent
accurate - then the drop of blood, drop of saliva, hair, or
tissue would be gotten rid of. It is the information in those
samples that potentially invades a person's privacy, she
explained.
Number 1868
REPRESENTATIVE JAMES, observing that the percentages offered by
Ms. Rudinger were considerably different from those mentioned in
earlier testimony, asked Ms. Rudinger where she obtained her
information.
MS. RUDINGER replied that she had received her information from
Senator Randy Phillips, who had said he'd obtained the
information from [Deputy Commissioner] Smith; she suggested
perhaps Mr. Smith could address that. Ms. Rudinger added that
it is the best information that she has, and the only data that
[the AkCLU] has right now to go on.
REPRESENTATIVE JAMES said she understands the position on
liberties, but when she herself thinks about catching burglars,
it protects her own liberty to be able to live safely in her
home and on the streets. She suggested that is one of the most
important aspects of liberty.
MS. RUDINGER concurred, but said the problem is that a person
convicted of burglary is already going to do [jail] time. Now
DNA will be taken. The argument is that taking DNA is supposed
to help law enforcement track this person in the future, once
the person is out of prison and back in society, under the
theory that the person will commit another crime. However, if
in Alaska it is known that 94 percent will not commit a future
crime, she said it does little to give citizens peace of mind.
She said it is simply part of a national movement, pushed by the
FBI, to build a national database, that contains as many samples
and [genetic] markers as possible.
CHAIR ROKEBERG noted that Ms. Rudinger's second page of written
testimony says DNA also can prove the innocence of a suspect,
thereby preventing terribly miscarriages of justice, and DNA can
even be used to correct wrongful convictions based on erroneous
identification. "I take your point," he remarked.
Number 2010
DEL SMITH, Deputy Commissioner, Department of Public Safety
(DPS), came forward to testify, noting that he had been before
the [House Judiciary Standing] Committee regarding the previous
legislation. He said he would address questions that had arisen
that day.
MR. SMITH affirmed that the 6 percent that he had told Senator
Phillips is an accurate number. Of the roughly 3,000 people
from whom [DPS] has taken mandatory DNA samples since January 1,
1996, 6 percent had a previous burglary conviction. That
information should be considered, but isn't scientific. "It
does not mean, as far as I'm concerned, that 94 percent didn't,"
he stated. Mr. Smith explained:
These are convicted individuals. We've got a lot of
unsolved burglaries out there; probably about 85
percent - in my experience, in my life in
investigations - of burglaries never get solved. That
being so, these are numbers that you probably should
consider: 44 percent in Virginia is the number that I
was told; 52 percent in Florida. Consider these, but
I don't know that we ought to live or die on what the
percentage is.
MR. SMITH pointed out that in Alaska, a substantial number of
burglaries are committed by people under the age of 18, who do
not end up, for the most part, with a criminal history against
which the [DPS] can check the database; he suggested the
officers from the APD could affirm that. He added, "We're
trying to figure out a way to do that now, to come up with a
better number, but [are] simply unable to do it right at the
moment."
MR. SMITH reported that there was a case in the last couple of
years in which, based on what [law enforcement] knew, probable
cause would have brought the person in for a particularly bad
crime in Anchorage. Based on the DNA sampling that [DPS] was
able to do, however, the person was not arrested. Mr. Smith
said, "That's the kind of thing I want to do. I do not want to
submit somebody to arrest. ... If I can avoid that by having
DNA that heads us off, and heads us in the right direction,
that's what I want to do. And as far as I'm concerned, that is
guarding the freedom of the public."
MR. SMITH stated that he supports the bill, which he believes to
be an important step forward. He emphasized that it is for
convicted burglars. He noted that there was an APRN [Alaska
Public Radio Network] program a few weeks ago from which he had
obtained the tape and transcript. A person from Virginia had
said, "If you don't want to do this, then you've probably given
someone one free sexual assault." Mr. Smith said that is
certainly a possibility. He suggested that many burglaries may
be based on a tip on how to get into a person's house, for
reasons that have little to do with taking money or guns.
REPRESENTATIVE JAMES asked Mr. Smith whether he thinks this will
have any deterrent effect on young people.
MR. SMITH answered that he would like to think so, but he wasn't
sure that such a thought process would enter into it. He
suggested that people may be more careful regarding what they
might leave at the crime scene.
CHAIR ROKEBERG indicated that was his own point: it could be a
double-edged sword.
Number 2200
ROBERT BUTTCANE, Legislative & Administrative Liaison, Division
of Juvenile Justice, Department of Health & Social Services
(DHSS), came forward to testify in support of HB 143. He told
members that there are approximately 600 burglary referrals to
the juvenile system a year; of that number, approximately 200-
300 are "adjudicated delinquent on burglary." He explained:
We don't adjudicate every child a burglar, because of
various extenuating circumstances. ... A young person
in a village may go into someone's home to get their
jug of whiskey from underneath the sink; technically,
that meets the qualifications or criteria for a
burglary. But as you piece all of this together, what
it really is more akin to, when you've got a 14- or
15-year old, is a criminal trespass. So we're much
more likely, in those kinds of cases, to adjudicate
the young person of a lesser serious offense.
That would be contrasted to the couple of teenagers
who skip school one day and sit in their car at the
end of the cul-de-sac and watch people go off to work,
go up to the door, ring the doorbell, get no response,
and then bust the door in and then ransack the house
and remove valuables and so on. That's a burglary in
the first degree, and those are the type of things
that we try to adjudicate, holding kids to a standard
of conduct and expectation.
So when we adjudicate someone for a burglary in the
first degree, it isn't just a simple thing. ... We're
talking about young people who have ... committed the
most serious of property offenses. It is a pretty
bold and daring move to invade someone's residence,
someone's castle, if you will. It is not an uncommon
factor for kids to go into homes at night while the
home is occupied. ... When I've talked to kids that
have done that sort of thing, they get some sort of
thrill out of doing this sort of thing with someone
sitting there in bed. That's scary, to me. We're not
talking about people who are innocent little
jaywalkers. We're talking about people who have lost
any of the reasonable sense about what is an
appropriate social boundary.
So when we adjudicate a young person of a burglary, we
are talking about finding someone having committed a
real serious offense against the sanctity and the
dignity of a person, their property, and the safety of
the community. So we're talking about a class of
offender that isn't like the rest of us. Taking a DNA
sample from them is giving us an opportunity to have
something on file that we can use later in terms of
our public safety efforts and our ability to solve
crimes and make sure that we hold offenders
accountable.
Number 2317
I was concerned about the use of information. A few
years ago, the legislature compelled us to share
delinquency information with schools. And I was
initially resistant to that because I was afraid that
teachers and schools would misuse information about a
kid's theft behaviors or assault behaviors - criminal
behaviors.
But what I have found as we have shared information
with schools is that they have used it appropriately.
They hold kids accountable. And I've actually found
that that was one of the best things that we did, in
terms of opening up some of the delinquency system to
let other people know what we're doing with these kids
so that another set of eyes could hold those kids
accountable to a standard of conduct that we all agree
to.
If the people who have this information are misusing
it, that's where we need to intervene so that if I, as
a juvenile probation officer, am not respecting the
confidentiality rights of a delinquent, then you hold
me accountable for misuse of that information, but you
don't stop me from collecting that information or
sharing that information with people who can make
better decisions and take more appropriate action
because they have [the information].
That would be the same thing with people in our crime
lab. If, for some reason, their procedures are such
that they allow people to access information that they
shouldn't have, then hold them accountable for
violating their protocols and violating those rights.
That would be an answer, rather than to deprive the
justice system of the use of a valuable tool that
helps solve crimes and keep the communities safe.
Number 2379
MR. BUTTCANE concluded:
If we were to enact this bill, we would anticipate
that there would be approximately 200 or so more DNA
samples that we would submit to the state crime lab
for adjudicated delinquents who have committed the
crime of burglary. We have a system in place that
would allow us to do that without any programmatic or
fiscal impact on our system.
The sampling is a very simple mouth-swab test. It's
taken by our field probation officers as well as our
youth facility staff. It's sealed and then sent off
to the crime lab, where it's classified, recorded, and
so on. It's a simple and effective process. And,
again, the department supports this committee
substitute.
REPRESENTATIVE JAMES said she believes there could be some
deterrent, especially for young folks, although some people
become calloused very early. She asked Mr. Buttcane, if he were
in charge of a juvenile who had given a DNA sample, whether the
process would include making it clear to the young person what
kind of evidence was being left behind and what the future could
hold if that person got into some other "bad trouble."
MR. BUTTCANE answered:
Yes. We do that now, with juvenile disclosure. ...
Not all cases are automatically subject to mandatory
public disclosure. But in our discussions of those
offenses that are not subject to mandatory disclosure,
we talk about, "Your next offense will trigger a
series of events which could subject you to being
published in the newspaper."
For kids who are on kind of that moral boundary, that
does help them stay within the boundaries sometimes,
explaining that to a young person who has committed a
burglary, to say, "You know, you've got a chance: you
can choose to walk this way or that way, but if you
walk this way, everything will be fine and taking your
DNA really won't matter down the road, but it is on
file, so that if you walk the other way, it will make
it easier for us to find you and hold you
accountable." So communicating that message to them,
I think, has some value.
REPRESENTATIVE JAMES mentioned that she had cared for foster
children in Oregon, Washington, and Alaska. One girl had come
from the Hillcrest School for girls, she noted, which had
provided Representative James with a full file on the student.
TAPE 01-57, SIDE B
Number 2472
REPRESENTATIVE COGHILL turned to the issue of security and noted
that "there are three things: crime labs and the types of
information that you might get from DNA, the security, and what
would be the liability from misuse." He requested that Mr.
Smith speak to that.
MR. SMITH pointed out that the samples were initially blood
samples stored in secure, cold/frozen storage. Only those
within the DNA program have access to those samples. The
samples are brought in and stored, and a barcode is established.
However, the DNA sample remains, "which presumably could
ultimately do all the things that some folks have indicated," he
said. Currently, doing anything other than what the law says is
a misdemeanor. Mr. Smith said he was not aware of any problems
nationally or locally within the state. However, he emphasized
the importance of holding [the sample] secure and preventing
anyone from accessing it except for the intended purposes.
CHAIR ROKEBERG asked if juveniles who have been adjudicated
delinquent are fingerprinted.
MR. BUTTCANE answered that the law allows juveniles to be
fingerprinted in the same manner in which adults are
fingerprinted. However, there is not the capacity to
fingerprint every juvenile delinquent, although "we" do attempt
to fingerprint those juveniles who have been adjudicated
delinquent through a formal court process as well as those
booked in youth facilities for any offense. Therefore, he
estimated that 30-40 percent of [Alaska's] youth are being
fingerprinted. Mr. Buttcane agreed with Chair Rokeberg that
there is no statutory or legal restriction.
Number 2328
CHAIR ROKEBERG pointed out that there is a proposed CS labeled
22-LS0234\F, Luckhaupt, 3/14/01. He requested that
Representative Murkowski review the changes encompassed in it.
REPRESENTATIVE MURKOWSKI explained that a letter from the Alaska
Civil Liberties Union (AkCLU) mentions the expansion that HB 143
allows, including allowing law enforcement to demand DNA samples
related to a missing person "if law enforcement articulates even
a remote possibility." She explained that a section of the
original bill has been deleted in the proposed CS because it
referred to the ability to identify missing persons. She
related her understanding that Alaska doesn't have the
capability to do it and thus it didn't make sense to include
such language in the legislation.
MR. SMITH noted the belief that there is a national effort to
allow [DNA from] missing persons to be put into the database.
Therefore, he thought Alaska needed legislation to do so.
However, since HB 143 has been drafted, the Federal Bureau of
Investigations (FBI) is creating that and will voluntarily let
people be put into the database. The FBI will maintain [a
national database] and thus it is not necessary to do it in the
DNA registry. Mr. Smith related his understanding that [this
national registry] would be similar to "reverse paternity." In
other words, a [parent] with a missing child could have a DNA
sample taken and placed in the database. Then the DNA would be
run against the remains and such that are otherwise
unidentifiable.
Number 2196
REPRESENTATIVE JAMES moved to adopt CSHB 143, version 22-
LS0234\F, Luckhaupt, 3/14/01, as the working document before the
committee. There being no objection, Version F was before the
committee.
Number 2189
REPRESENTATIVE MEYER moved to report CSHB 143, version 22-
LS0234\F, Luckhaupt, 3/14/01, out of committee with individual
recommendations and the accompanying fiscal notes. There being
no objection, CSHB 143(JUD) was reported from the House
Judiciary Standing Committee.
The committee took a brief at-ease from 2:10 p.m. to 2:13 p.m.
HB 121 - CHARITABLE GIFT ANNUITIES
Number 2180
CHAIR ROKEBERG announced that the next order of business before
the committee would be HOUSE BILL NO. 121, "An Act relating to
the issuance of qualified charitable gift annuities." Chair
Rokeberg noted that before the committee was CSHB 121(L&C).
Number 2173
REPRESENTATIVE LISA MURKOWSKI, Alaska State Legislature,
testified as the sponsor of HB 121. Representative Murkowski
explained that a charitable gift annuity is essentially a
contractual agreement between a charity and an individual. The
charitable annuity guarantees a monthly payment and allows a tax
deduction. This legislation establishes a notice system to the
Division of Insurance that a qualified charitable annuity is
present and has accepted these annuities. This legislation
defines and clarifies what a gift annuity is and specified that
a charitable gift annuity is not insurance.
REPRESENTATIVE MURKOWSKI emphasized that this is not covered
through any form of insurance through the state. Furthermore,
the Division of Insurance is not regulating this and thus the
donor should realize that there really is no regulation over
this because it is purely a notice requirement. However, this
legislation lets the consumer know that a particular charity is
a legitimate charity. She pointed out that the charity must
meet the specified minimum cash requirements as well as a
minimum operation time.
REPRESENTATIVE MURKOWSKI referred to the committee packet, which
should include a brochure from the National Heritage Foundation
that walks one through the process of a charitable gift annuity.
She informed the committee that there are only a few established
charitable gift annuities. She indicated that the Providence
Foundation will explain how the process works for them. The
legislation before the committee is adapted from a National
Association of Insurance Commissioners (NAIC) model, which has
been adopted in 30 states. She pointed out that this is purely
a notification process to the division and is not a regulation
of the charities.
REPRESENTATIVE JAMES related her understanding that if she
qualified under this legislation to give $100,000 to a qualified
charity, then she would receive a monthly amount. She asked
whether the money she received would be taxable.
REPRESENTATIVE MURKOWSKI answered that it would be tax-
deductible to a point; however, she was not certain what "that
point" was. Representative Murkowski explained that the
advantage to the donor is twofold in that it allows one to make
a charitable donation for which the individual receives a
deduction as well as allowing a revenue stream from the
investment at a rate set by actuarial standards.
Number 1858
JEROME SELBY, Providence Health System in Alaska, testified via
teleconference. Mr. Selby informed the committee that
Providence Health System requested HB 121. He explained that
Providence is one of the few organizations that is doing the
planned giving program. [Providence Health System in Alaska] is
a participant in the national effort on planned giving. The
NAIC model was developed in order to handle this fairly
uniformly across the country. Therefore, [Providence Health
System in Alaska] requested that the legislature take this up to
put it on the record as well as to make it clear for the
Division of Insurance and the individual. From Mr. Selby's
perspective, this legislation provides a good test such that
folks notify the state that they are going to be in this
business. Therefore, people can check with the state regarding
the existence of an organization. This legislation doesn't
really change anything that Providence is doing, since it
already has been following what is in the bill. However, the
bill does level the playing field for everyone. Mr. Selby
informed the committee that the other folks doing planned giving
programs in the state have been contacted and have given
unanimous support for HB 121.
Number 1725
JON CALDER, Director, Annual & Planned Giving, Providence Alaska
Foundation, testified via teleconference. Mr. Calder echoed
earlier testimony that this is a good bill to support the
charitable efforts in Anchorage and Alaska. This legislation
defines and clarifies what a gift annuity is such that it
assures the Division of Insurance that it is not commercial
insurance. The passage of this bill in over 30 states has
provided a good track record. Mr. Calder echoed Representative
Murkowski's testimony regarding the minimum requirements for a
gift annuity and the notice that donors are given regarding the
fact that this is not under insurance laws.
REPRESENTATIVE JAMES requested that Mr. Calder explain the
benefit to the giver in this process.
MR. CALDER explained that [gift annuities] came into being
almost 100 years ago; a gift annuity essentially allows the
donor to make a gift while guaranteeing a lifetime income to the
donor. Therefore, the donor can make a meaningful gift while
providing the security of lifetime income. Practically
speaking, the donor also receives a charitable deduction that is
based on the actuarial table given by the National Committee on
Gift Annuity. Furthermore, the donor receives partial tax-free
income.
MR. CALDER, in response to Representative James, spoke to the
relationship between the amount of cash given by the donor and
the amount returned to the donor. The relationship is
calculated on the rate established by the National Committee on
Gift Annuities. He explained that the amount from the donor is
based on age in that the higher the age, the greater the rate
the person receives. On the average, the charitable deduction
would amount to about half of the gift. Therefore, a $10,000
gift would result in about $4,000 to $5,000. For example if the
person is getting $2,000 a year back, the person - again based
on age - is likely to get back more than 50 percent that is
going to be partially tax-free income. However, he pointed out
that the relationship for a younger donor would be different.
CHAIR ROKEBERG asked if the tax-free income would be the return
on principal due to the donor's age.
MR. CALDER explained that partially tax-free income is received
because a gift annuity is basically part gift and part return of
income. He noted that this is all governed by Internal Revenue
Service (IRS) regulations. However, because a charitable gift
annuity is part gift, the person is able to have income that is
partially tax-free. Therefore, the donor would receive credit
for the gift as well as income.
Number 1420
CHAIR ROKEBERG surmised, then, that a donor could receive a
higher percentage return on the investment if the imputed rate
return of tax savings were calculated into it. Chair Rokeberg
said that it could be viewed as doing good works and receiving
partially tax exempt bond money back.
MR. CALDER agreed and reiterated that a good portion of the
money the donor receives will be tax-free.
REPRESENTATIVE JAMES related her understanding that a charitable
gift annuity is a better deal for the receiver and thus the
donor would want to do it because it is a good enough deal that
the donor would want to give the money.
MR. CALDER agreed. Although the tax benefits are there, a donor
most often gives to a charity because the donor believes in what
the charity does. A gift annuity came into being because it
allowed an individual to give a meaningful gift while helping
the donor by providing guaranteed income. Therefore, the tax
benefits are not the primary reason an individual would make the
gift.
Number 1286
GLORIA GLOVER, Chief Financial Examiner, Anchorage Field Office,
Division of Insurance, Department of Community & Economic
Development (DCED), testified via teleconference. Ms. Glover
noted [DCED's] support of CSHB 121[(L&C)]. She said that [the
division] will maintain a list in order to respond to public
requests for information regarding who is on the list. This
legislation does provide some enforcement if the donors are not
provided the notice required by this legislation. However, she
didn't see that [the division] is regulating these products or
these entities, which is reflected in the zero fiscal note.
CHAIR ROKEBERG inquired as to why the Division of Insurance has
oversight rather than the Division of Banking, Securities &
Corporations.
MS. GLOVER answered that there is some overlap. However, she
pointed out that the Division of Insurance statute includes the
definition of annuity. Ms. Glover related her understanding
that currently annuities are under the jurisdiction of the
Division of Insurance. In further response to Chair Rokeberg,
Ms. Glover agreed that the Division of Insurance is responsible
for annuity oversight in general.
CHAIR ROKEBERG pointed out that annuities are usually used by
insurance companies as a marketing tool for investment for their
clients. Furthermore, annuities are based on actuarial life
expectancy.
MS. GLOVER agreed.
Number 1177
CHAIR ROKEBERG closed the public testimony on HB 121.
REPRESENTATIVE COGHILL asked if the House Labor and Commerce
Standing Committee had discussed the annuity notification for an
insolvency due to bad management.
REPRESENTATIVE MURKOWSKI pointed out that there is a minimum
cash requirement of $300,000 in assets of the charity, which is
essentially the backup to the guaranteed annuity.
REPRESENTATIVE COGHILL related his understanding that most
things would be specified in the contract. He asked if there
would be notification if [the entity] falls below the limit. He
surmised that "we" are not regulating these [gift annuities].
REPRESENTATIVE MURKOWSKI agreed.
CHAIR ROKEBERG directed attention to the bill, which says that
these are not regulated by the state and that the consumer is
informed of such in the contract.
Number 1055
REPRESENTATIVE MEYER moved to report CSHB 121(L&C) out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 121(L&C) was
reported from the House Judiciary Standing Committee.
The committee took a brief at-ease from 2:34 p.m. to 2:38 p.m.
HB 125 - UNLAWFUL VIEWING
Number 1042
CHAIR ROKEBERG announced that the next order of business would
be HOUSE BILL NO. 125, "An Act relating to unlawful and indecent
viewing and photography and to civil damages and penalties for
that viewing and photography."
Number 1015
DENISE HENDERSON, Staff to Representative Pete Kott, Alaska
State Legislature, presented HB 125 on behalf of Representative
Kott, the sponsor. She explained that HB 125 will ban the
practice commonly known as "up-skirting or down-blousing," and
will amend AS 09.68 by creating a special civil damage provision
that will benefit people who have been unlawfully viewed or
photographed. She added that HB 125 creates a new crime that
will make it illegal to surreptitiously view or photograph
someone in the interior of a room without that person's consent.
This crime would be a class A misdemeanor. She also said that
HB 125 amends the existing crime of indecent viewing by
including the viewing of undergarments as well as unclothed body
parts.
MS. HENDERSON remarked that the modern technology of the
Internet has led to the practice of web sites' posting and
buying pictures from "high-tech peeping Toms," and telling
people where they can buy the type of equipment needed in order
to take these types of pictures themselves. She added that web
sites promote and encourage this [behavior]. Ms. Henderson
explained that HB 125 will not only protect the privacy of
Alaskans, but will also prohibit the perpetrators of these types
of crimes from realizing any type of monetary gain.
MS. HENDERSON, in response to questions, confirmed that HB 125
both creates a civil cause of action [by amending AS 09.68
through the addition of a new section] and expands the
misdemeanor provision in current statute - AS 11.61. She added
that [HB 125's change to AS 09.68] will allow for civil damages
to be pursued.
REPRESENTATIVE MEYER inquired whether HB 125 would allow a
person to take a picture of someone wearing a swimsuit.
MS. HENDERSON explained it would depend on the circumstances; if
a person were outside someone's home and took a picture of an
individual while he/she was inside, she opined that HB 125 would
apply because the person inside his/her home has a right to
privacy and the photography would be occurring without that
person's consent or knowledge. If, however, the person taking
the picture is someone who has been invited into the home - for
example, at a hot-tub party - and the subject of the photography
knows that the picture is being taken, then HB 125 would not
apply and those pictures could be displayed on a web site. In
the latter example, she added, the subject of the photography
has the opportunity to tell the person taking the pictures not
to display them on the Internet.
REPRESENTATIVE COGHILL, with regard to Section 2, asked whether
it is necessary to use the word "surreptitiously", and if so,
whether the meaning would be clear enough.
REPRESENTATIVE JAMES responded that it is a word with clear
meaning, and that it well defines the topics being discussed.
Number 0596
JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties
Union (AkCLU), testified via teleconference and said her
organization has a number of concerns with HB 125. She noted
that when it becomes a crime to take pictures of someone who is
actually clothed - albeit skimpy clothing - serious free speech,
First Amendment, and Alaska constitutional free speech concerns
are raised. Also, with regard to the expansion in Section 4 of
the definition of what a picture is, she noted that "image" can
refer to a computer-generated image that does not actually
involve the use of any human subject, but merely looks like a
human being. She cautioned the committee that HB 125 might be
premature; the U.S. Supreme Court is going to hear a case in
October that asks this very question - whether it is
unconstitutional to prohibit the viewing of a computer-generated
image that doesn't involve the use of any human subject. She
suggested that the committee might wish to delay any action
regarding HB 125 so as not to fly in the face of next year's
U.S. Supreme Court decision.
MS. HENDERSON relayed that Detective Klinkhart - who works in
the sex crime division, which deals with a lot of child
pornography - is very supportive of HB 125. She added that
Alaska is experiencing the problem of pornographic pictures [of
children] being sold on the Internet. She offered that Section
3 of HB 125 details how a person commits the crime of indecent
viewing or photography: "if, in the state of Alaska, the person
knowingly views, or produces a picture of, the private exposure
of the genitals, anus, or female breast of another person". She
explained that ", or the undergarments of the person covering
the genitals, anus, or female breast," has been added to the
definition because of incidents wherein cameras have been placed
in girls'/women's locker rooms and video tapes have been made of
girls/women in various states of undress. She confirmed in
response to questions that in these cases, current statute did
not allow for prosecution because there was not any real nudity
shown, simply views of girls/women in their undergarments.
MS. HENDERSON pointed out that although these types of crimes
are already addressed in statute, a further effect of HB 125 is
to set a precedent so that people do not have the opportunity to
have any type of monetary gain from these types of crimes. It
has become too easy to go onto various web sites and sell
photographs, she opined, and the sponsor of HB 125 wishes to
ensure that there is some type of civil provision set up so that
people don't have to suffer while others gain monetarily from
this type of behavior.
Number 0207
ROBERT BUTTCANE, Legislative & Administrative Liaison, Division
of Juvenile Justice, Department of Health & Social Services
(DHSS), said that [the DHSS] has some concerns with HB 125. As
a juvenile probation officer responsible for deciding whether a
police report contains probable cause to proceed on taking
action against a juvenile offender, he explained that "we" might
have problems with the word "surreptitiously" as it is used in
HB 125. While there is a legal definition for that word in
Black's Law Dictionary, he continued, in circumstance it might
be difficult to really separate out the criminals from the non-
criminals. He presented the following scenario:
I am in someone's living room and I am trying to seek
a photograph of the facial surprise of someone opening
a present. They might not know that I am actually
snapping the picture, and not even know that I took
the picture until I e-mail it to someone a few days
later and say, "Wasn't that neat that Jane got this
present?"
MR. BUTTCANE continued by saying that the way HB 125 is written,
while this scenario might not result in prosecution, it might be
investigated if the subject of the picture was annoyed that
his/her photograph was taken. He also pointed out the DHSS
engages in a number of activities in which people are
photographed as a routine course of business. For example, when
people are admitted to the Alaska Psychiatric Institute (API),
they are photographed so that the DHSS can ensure that medical
records contain a picture of the patient, in order that the
correct medication can be administered to the right person. He
added that those people are not always voluntarily giving [the
DHSS] permission to take those pictures, and sometimes - if, for
example, patients entering a medical facility are in a comatose
state - they are not even aware that the photograph has been
taken. These pictures are being taken and circulated among
people who have to have access to that photograph in their
normal course of business.
MR. BUTTCANE noted that HB 125 does exclude some specific uses
of photographs - for security surveillance, for law enforcement
- but it does not provide explicit exclusions for the normal
course of business in health care professions, hospitals, or
juvenile corrections facilities. He suggested that HB 125 could
be amended to add this type of exclusion so that there wouldn't
be any question that people doing their job would not be subject
to [prosecution or investigation].
TAPE 01-58, SIDE A
Number 0009
CHAIR ROKEBERG suggested to Mr. Buttcane that he have the
attorney general draft an amendment that would meet these
concerns. Chair Rokeberg then asked whether the sponsor is
endeavoring to address all incidents of photography if it is
surreptitious or unknown by the subject to have taken place.
MS. HENDERSON said yes.
CHAIR ROKEBERG followed up by asking if this is true regardless
of the activity of the subjects, such as a birthday party, for
example.
MS. HENDERSON said no, not in those types of situations. She
added that she is willing to entertain any motion, on behalf of
the sponsor, that will clarify this. She confirmed that Section
2 of HB 125 is addressing a new crime - improper viewing or
photography - and the intention of the sponsor is to make it a
crime for a person to photograph someone in any type of position
without his/her knowledge. She added that this activity is an
infringement of privacy.
REPRESENTATIVE JAMES noted that it is getting pretty broad to
make photographing candid shots of people a crime.
CHAIR ROKEBERG offered that he interprets HB 125 as saying "a
photographer can take pictures out on the street without you
knowing it, but if you're in the room, he can't do it."
MS. HENDERSON said no. She offered the interpretation that if
someone were in his/her own home, HB 125 would apply, but if a
person were out in public, he/she could not have the same
expectation of privacy.
REPRESENTATIVE JAMES pointed out that the language in HB 125
simply refers to "a room" but does not specify someone's home.
Number 0309
REPRESENTATIVE COGHILL, with regard to the practical application
of Section 2 of HB 125, said he thinks the intention is the same
as is specified in Section 3, and that it should perhaps be
referenced in that first paragraph [of Section 2], lines 8-9.
Otherwise, it's going to be wide open, he added.
CHAIR ROKEBERG asked whether [Section 2] is intended to include
any type of a pornographic situation.
MS. HENDERSON replied yes.
REPRESENTATIVE JAMES noted that the language doesn't say that.
CHAIR ROKEBERG agreed.
REPRESENTATIVE MEYER commented that Mr. Buttcane brought forth
some good points; sometimes a person will take pictures that the
people don't know about, such as in those situations detailed by
Mr. Buttcane.
CHAIR ROKEBERG granted that subsection (e) of Section 2 does
make reference to the meaning of picture as defined in AS
11.61.123, but noted that this did not help clarify the overall
intent of Section 2.
REPRESENTATIVE MEYER remarked that he thinks HB 125 is a good
bill - that the intent of it good - but he added that he also
thinks a committee substitute (CS) needs to be created that will
address the concerns brought forth.
CHAIR ROKEBERG agreed and said he is attempting to "zero in" on
specific language.
Number 0465
ALVIA "STEVE" DUNNAGAN, Lieutenant, Division of Alaska State
Troopers (AST), Department of Public Safety (DPS), testified via
teleconference and said that in general, the DPS supports HB
125. He explained that HB 125 tightens up a net of illegal
activity where [AS 11.61.123] falls a little bit short. He said
that although AS 11.61.123 covers some good topics, it
principally is focused on viewing and photography of a sexual
nature. By contrast, AS 11.61.121 - the new statute proposed by
HB 125 - will cover all viewing or photographing of people in
private places if it occurs without their knowledge and consent,
whether the context is sexual or the subjects are nude or the
subjects are simply going about their everyday business. He
surmised that the sponsor's intent is to prevent people from
taking pictures of other people doing ordinary things in private
places that can then be sold on the Internet. He presented the
scenario wherein someone takes a picture of a person and then
links the face of that person with the image of whatever body
parts the photographer wants, in order to sell the end result on
the Internet.
LIEUTENANT DUNNAGAN said he thinks HB 125 contains some good
exceptions, and he agreed that a few more could be added as
suggested by Mr. Buttcane. He opined that [AS 11.61.121]
specifically addresses all photographs that are taken of people
without their consent in private places. He acknowledged that
someone can take a picture of people on the street corner
because they have no expectation of privacy there. But when
people get into their homes or the bathroom at the Chevron
station or any other place, and they close the door and are by
themselves or with the people that they choose to be with, then
these people do have an expectation of privacy from outside
viewers. He opined that these are the types of situations that
HB 125 is trying to cover.
Number 0644
LIEUTENANT DUNNAGAN, in response to questions, relayed that
there was a case in Big Lake a few years ago wherein the owner
of an apartment building had placed a sophisticated monitoring
system with pinhole cameras in several rooms in the apartments;
the perpetrator also had installed false walls and hidden
corridors to enable him to view residents in their apartments.
Lieutenant Dunnagan surmised that HB 125 would cover this kind
of behavior, especially if the perpetrator is taking pictures
and viewing everyday normal activities when the occupants are
fully dressed and not doing anything that "we" normally think of
regarding the term "indecent viewing," such as taking showers or
changing clothes.
REPRESENTATIVE COGHILL, on the topic of private places, asked
whether the term "interior of a room" would provide "an escape
hatch" for someone's defense; he then listed the examples of a
swimming pool and a hot tub as not falling into the category of
being in the interior of a room.
LIEUTENANT DUNNAGAN replied that it certainly could be. For
example, [an enclosed] hot tub in one's backyard might not
necessarily be in a room but would be in the curtilage of one's
home and would be protected against certain things. However,
if the perpetrator is on the other [side of a] draw on the
mountain or a hill overlooking somebody's backyard and is
watching and taking pictures of a hot tub party, then HB 125,
the way it is written, wouldn't cover that situation because the
subjects would be outside.
CHAIR ROKEBERG noted that a lot of businesses, as a matter of
course, have their own business surveillance cameras that are
not necessarily security surveillance, which is provided for in
[subsection (d)(1), of Section 2]. And he surmised that most
employees would be aware, via their employment contract, when
they were under surveillance simply during the course of
everyday business.
LIEUTENANT DUNNAGAN said that both of Chair Rokeberg's comments
are correct. There are all kinds of different monitoring
systems out there, he explained, and most businesses use them
for some kind of security. For example, it could be to help law
enforcement make an apprehension after a robbery; to monitor
what goes on in the parking lot, because there are a lot of car-
related problems; or to monitor inside a store for shoplifting
or to prevent unauthorized access to certain areas. He added
that in the latter example, the employees are definitely aware
that that sort of monitoring is taking place. He also pointed
out that most people know that monitoring occurs in stores and
are not surprised to see their faces on the monitor behind the
counters of 7-11 stores, for example.
Number 0867
JERRY LUCKHAUPT, Attorney, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative Affairs
Agency, speaking as the drafter, explained that he had used the
word "surreptitiously" in Section 2 because he felt he needed to
cover the situation when someone is innocently walking down the
street, looks off to the right, happens to look through a
window, and sees someone inside the house; that subject would be
in the interior of a room, but that viewing would not be
conducted in a manner that anyone would see as being
unreasonable in any way. So, by inserting the word
"surreptitiously", the application of this law would be limited
to situations in which someone is doing the viewing or the
photography in a way that is sneaky and hidden: it's done in
such a way that the subject is unaware that the observation is
occurring and hence is unable to stop it, as opposed to a
situation in which the camera is visible. For example, if
someone walks into a person's office with a camera, that person
can see that it is occurring and can take steps to stop it. Or
if it is obvious that someone is outside looking in, the subject
can close the blinds or curtains. But if the subject does not
know that someone is outside looking in, because he/she is
hidden, the subject can't stop that activity from occurring
because the subject doesn't know about it.
MR. LUCKHAUPT explained that HB 125 is designed to provide a
criminal penalty for those instances when someone is [viewing or
photographing a subject] in a manner that would not normally be
expected to occur, and when the subject has a reasonable
expectation of privacy, for example, when he/she is in a room
instead of being outside. He suggested that using the word
"surreptitiously" is a way to narrow the reach of HB 125 because
[otherwise] it could be applied indiscriminately to all kinds of
conduct when a person happens to observe a subject who feels
that he/she deserves some privacy.
CHAIR ROKEBERG noted that questions and concerns have been
raised regarding the use of the phrase "in the interior of a
room". He brought up the point that someone could be inside
his/her home in the hallway and it would not be considered "in a
room." Chair Rokeberg asked Mr. Luckhaupt whether expanding the
interior-of-a-room concept to include "or a place where one
would have a legal expectation of privacy" would be too broad,
and whether it would then become more of a subjective argument.
He acknowledged that Mr. Luckhaupt, as the drafter, was trying
to limit the application.
Number 1078
MR. LUCKHAUPT agreed that he was seeking to limit the reach of
Section 2, and he noted that he had started out using the
concept of the interior of some structure - some building, or a
residence - but he had not wanted to limit the application just
to residences, because there is the expectation of privacy in
places of business as well. With regard to the term "curtilage"
used by Lieutenant Dunnagan, he noted that it includes the yard
and all the areas of a person's real estate - an area that is
bounded by a fence. He explained, however, that should it be,
for example, a picket fence or - as is the case with the Capitol
Building - simply an open area, then an expectation of privacy
is not reasonable.
REPRESENTATIVE COGHILL mentioned a reluctance to exempt
professional journalists from Section 2 when they are engaging
in surreptitious behavior.
MR. LUCKHAUPT, in response to the suggestion to use the term "in
the structure of a home", said he did not want to limit the
application of Section 2 just to structures. He added that some
of the cases that people have gotten upset about involved
businesses wherein someone has been observed, not necessarily by
the owner of the business, but by someone else via a hidden
camera who has watched and photographed the subject do everyday
actions such as picking his/her nose, and then later the
pictures were placed on the Internet.
CHAIR ROKEBERG suggested that businesses should be exempted from
Section 2. He used the example of a business that legitimately
monitors its holdings but then later someone else gets a hold of
the tape/photographs and uses them to the subject's detriment;
he said that the original viewing/taping/photographing should be
legal, while misuse of the end product should be punishable.
MR. LUCKHAUPT explained that the misuse of the photograph may be
illegal under Section 2, but the business owner is going to be
exempt under [Section 2, subsection (d)(1)] page 2, lines 19-23,
which is the same language used in the indecent viewing statute
sponsored by Representative Mackie in response to a Klawock
incident.
Number 1285
CHAIR ROKEBERG opined that this language did not go far enough
because it pertained strictly to incidents with a sexual
context. He added that he thinks the language in Section 2
should be expanded to exempt business operations that use
surveillance cameras to monitor for performance, not just for
security reasons. He said that employees should not have an
expectation of privacy, and they also should be notified, via
contract, that this is the case. He noted, however, that there
is no statutory requirement for notice of surveillance, "just
like eavesdropping on the phone call of an employee is legal."
As much as "we" love privacy rights, he added, the employer has
the right to monitor the productivity of staff.
REPRESENTATIVE COGHILL noted that there are places where it
would not be appropriate for an employer to monitor staff, such
as in bathrooms, dressing rooms, or changing rooms; therefore,
he did not want to make that sort of allowance for employers.
CHAIR ROKEBERG mentioned the word "surreptitiously." He added
that "that type of conduct needs to be exempt from this," and
said he did not agree with the drafter that the language in
[subsection] (d)(1) goes far enough.
MR. LUCKHAUPT explained that the language in [subsection (d)(1)]
had originally been arrived at in response to the incident in
Klawock.
CHAIR ROKEBERG countered that this language, at the time of its
adoption, pertained to viewing nude women, which is one of the
reasons that there is "an undergarment clause" in HB 125.
MR. LUCKHAUPT acknowledged that the "private exposure of the
genitals, anus, or female breast" could occur in changing rooms,
fitting rooms, and bathrooms, and that the only way [monitoring
could be done] is for crime prevention purposes or other
security purposes. So to the extent that a business owner is
concerned about theft by employees [this monitoring could
occur].
CHAIR ROKEBERG countered that the new [AS 11.61. 121, in Section
2] refers to people who have clothes on, generally speaking.
Number 1414
MR. LUCKHAUPT responded:
I guess it would apply to the use of
"surreptitiously"; ... I thought long and hard about
coming up with a way to insert something that made
this criminal statute a little harder to apply and ...
protected that innocent conduct. If it's truly
innocent, it isn't surreptitious. If it's with notice
to the person, I am not sure that it's surreptitious
at that point anymore.
CHAIR ROKEBERG said he agreed but added that he was concerned
about potential lawsuits unless the committee could come up with
a draft that [demarcates] that area strongly enough.
REPRESENTATIVE COGHILL reminded members that [Section 2] refers
to a class A misdemeanor, and he questioned how far "we" are
going to go to "pursue a class A misdemeanor."
CHAIR ROKEBERG opined that if something is going to be listed as
a criminal activity, then [the statute] should specify what
constitutes the crime.
MR. LUCKHAUPT added that in addition to the class A misdemeanor,
Section 1 provides for civil penalties.
CHAIR ROKEBERG, in an effort to assist with the drafting of a
committee substitute, suggested expanding the [language in
Section 2] to include "the interior of a room or home".
MR. LUCKHAUPT offered to just leave it at "peoples' residences".
With regard to including business premises, he added, the
committee could make that choice. People are entitled to more
protection and to have a higher expectation of privacy in their
own homes, however; so if the committee chose to make that the
demarcation, it would not be unreasonable. There is still the
protection against the private exposure of genitals, he added.
CHAIR ROKEBERG opined that the sponsor is concerned with the
publication and broadcasting of pictures, even those legally
obtained.
MR. LUCKHAUPT noted that the taking of a legally obtained tape
would constitute a theft, which could be prosecuted under
current statute. He also noted that a person could pursue the
civil penalties provided for in HB 125 even if there is not a
criminal charge filed. He added that the civil penalties
provided for are substantial and will act to provide a
disincentive for engaging in this kind of conduct.
Number 1586
CHAIR ROKEBERG, with regard to the drafting of a committee
substitute, said:
We need to look at the definition of the home - or
that scope - where we have the expectation of
privacies; I'd like to see something specific here
about businesses performing their business; and then
Mr. Buttcane brought up some concerns about the
agencies and their day-to-day operation, some [of
which] might be construed to fall under this. Plus, I
am concerned about this whole issue of the rebroadcast
being the actual crime and not the taking of the
pictures, which I think meets the sponsor's intent
....
CHAIR ROKEBERG then asked for clarification on this latter
point.
MS. HENDERSON indicated that the sponsor did intend for the
taking of the picture, as well as the rebroadcast of it, to be
included as a crime in HB 125.
CHAIR ROKEBERG asked where in HB 125 there is language regarding
rebroadcast.
MR. BUTTCANE noted that Section 1 contains the language
pertaining to transmittal.
CHAIR ROKEBERG surmised, then, that only the civil provisions of
HB 125 could address the "downstream" aspect of this crime.
Number 1726
MR. LUCKHAUPT noted that this is his intent with drafting HB 125
in this fashion. "It comes up a lot as to how far down we
provide the criminal penalty," he added. If the initial picture
was taken legally and then stolen, he asked do we then impose
criminal conduct for the person that acquires the tape - maybe
through five or six different people down the line - and then
broadcasts it? He noted that in this example it would be easier
to impose a civil liability rather than a criminal liability on
a person who may not be aware that this picture was not taken
with the consent of the subject. It becomes very hard to have a
successful criminal prosecution at that point. He said he was
trying to stop the criminal liability at some reasonable point,
and he'd chosen it to be with the person who is doing the
viewing or taking the picture, and then letting the civil
proceeding sort everything else out.
REPRESENTATIVE COGHILL said he'd struggled with it because he
has been surreptitiously viewing people in his job as a teacher,
as a matter of course, for years; he said he oftentimes would
surreptitiously watch his substitute teachers and other people
as they interact with children at the school. He added that had
anyone ever "got crossways" and wanted to sue him for this
activity, he would have been in trouble. He noted that although
he did this as a matter of safety, it could be argued that it
wasn't.
CHAIR ROKEBERG said he thinks that this is entirely proper
conduct, and that a lot of the business community - in both
public and private sectors - also have the legitimate right to
oversee people and their activities.
MR. LUCKHAUPT, on the example given by Representative Coghill,
said that observing a person in the school simply by standing in
the public hall off to the side of the doorway would not be
considered surreptitious as compared to using a peephole
designed for that purpose, which might be, and maybe should be,
subject to some sort of liability. He added that it is all
going to depend on the quality of how the person undertakes the
viewing, for example, if that person is doing it from the bushes
- like a peeping Tom - and observing someone inside who can't
protect himself/herself from that. He noted that Alaska does
not currently have a peeping Tom statute; HB 125 could become
the peeping Tom statute, he added.
REPRESENTATIVE COGHILL suggested that the phrase "with the
expectation of privacy" should be incorporated into [subsection
(a) of Section 2], because there are going to be times when a
person is going to be in a room that he/she expects will be
private, and there will be times when that expectation won't be
present. And if a person has made reasonable efforts to be
private, he opined, then that person should have [the protection
of that privacy].
Number 1947
MR. LUCKHAUPT reminded [the committee] that the phrase
"expectation of privacy" is rather nebulous and has different
meanings to different people; he said he would try to create
something in a committee substitute that will reflect what a
reasonable person would expect, which is often done in criminal
law as well as in a civil context. He noted, however, that when
possible, [drafters] try to get a little more definition in
place when something pertains to the criminal area; this is why
he'd used the terms "in a room" and "surreptitious" to try to
express the concept that someone observed under those
circumstances does have an expectation of privacy. Mr.
Luckhaupt spoke at length on the topic of drug tests for
employees as it pertained to the expectation of privacy, and
then said he would try to craft appropriate language according
to the committee's instructions.
CHAIR ROKEBERG reiterated his suggestions for a committee
substitute.
REPRESENTATIVE COGHILL asked whether "image," under the
definition of "picture" in Section 4 applied only to actual
people or also applied to manufactured images of people.
MR. LUCKHAUPT said that the definition of "image,", which will
also apply to the existing law regarding indecent viewing, is
intended to apply to representations that are now being created
in different ways.
CHAIR ROKEBERG commented that perhaps a definition of
"undergarments" might be in order so that it is clear that it
excludes T-shirts.
REPRESENTATIVE COGHILL, on a possible amendment, suggested that
[subsection (d)(2)], pertaining to journalists, be tied to the
"journalists code."
CHAIR ROKEBERG announced that HB 125 would be held over.
HB 196 - RIGHT OF ACTION FOR LEGAL SEPARATION
Number 2222
CHAIR ROKEBERG announced that the next order of business would
be HOUSE BILL NO. 196, "An Act establishing a right of action
for a legal separation; and amending Rule 42(a), Alaska Rules of
Civil Procedure." [With the reading of the title, HB 196 was
held over.]
ADJOURNMENT
Number 2238
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:35 p.m.
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