Legislature(1999 - 2000)

04/07/2000 03:25 PM House L&C

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
    HOUSE LABOR AND COMMERCE STANDING COMMITTEE                                                                                 
                   April 7, 2000                                                                                                
                     3:25 p.m.                                                                                                  
MEMBERS PRESENT                                                                                                                 
Representative Norman Rokeberg, Chairman                                                                                        
Representative Andrew Halcro, Vice Chairman                                                                                     
Representative Lisa Murkowski                                                                                                   
Representative John Harris                                                                                                      
Representative Sharon Cissna                                                                                                    
Representative Jerry Sanders                                                                                                    
MEMBERS ABSENT                                                                                                                  
Representative Tom Brice                                                                                                        
COMMITTEE CALENDAR                                                                                                              
HOUSE BILL NO. 278                                                                                                              
"An Act relating to privacy, to private genetic information, to the                                                             
rights of employees related to electronic monitoring by employers,                                                              
and to certain consumer information; and amending Rule 26, Alaska                                                               
Rules of Civil Procedure."                                                                                                      
     - HEARD AND HELD                                                                                                           
PREVIOUS ACTION                                                                                                                 
BILL: HB 278                                                                                                                    
SHORT TITLE: PRIVACY:DNA/EMPLOYEE MONITORING/CONSUMERS                                                                          
Jrn-Date    Jrn-Page           Action                                                                                           
 1/10/00      1892     (H)  PREFILE RELEASED 1/7/00                                                                             
 1/10/00      1892     (H)  READ THE FIRST TIME - REFERRALS                                                                     
 1/10/00      1892     (H)  L&C, JUD, FIN                                                                                       
 1/10/00      1892     (H)  REFERRED TO LABOR & COMMERCE                                                                        
 2/02/00      2076     (H)  COSPONSOR(S): DYSON                                                                                 
 4/07/00               (H)  L&C AT  3:15 PM CAPITOL 17                                                                          
WITNESS REGISTER                                                                                                                
REPRESENTATIVE ERIC CROFT                                                                                                       
Alaska State Legislature                                                                                                        
Capitol Building, Room 400                                                                                                      
Juneau, Alaska  99801                                                                                                           
POSITION STATEMENT:  Testified as the sponsor of HB 278.                                                                        
PAM LaBOLLE, President                                                                                                          
Alaska State Chamber of Commerce                                                                                                
217 Second Street                                                                                                               
Juneau, Alaska  99801                                                                                                           
POSITION STATEMENT: Expressed concern with HB 278.                                                                              
ACTION NARRATIVE                                                                                                                
TAPE 00-45, SIDE A                                                                                                              
Number 0001                                                                                                                     
CHAIRMAN NORMAN ROKEBERG called the House Labor and Commerce                                                                    
Standing Committee meeting to order at 3:25 p.m.  Members present                                                               
at the call to order were Representatives Rokeberg, Murkowski,                                                                  
Harris and Cissna.  Representatives  Halcro and Sanders arrived as                                                              
the meeting was in progress.                                                                                                    
HB 278-PRIVACY:DNA/EMPLOYEE MONITORING/CONSUMERS                                                                                
CHAIRMAN ROKEBERG announced the first order of business is HOUSE                                                                
BILL NO. 278, "An Act relating to privacy, to private genetic                                                                   
information, to the rights of employees related to electronic                                                                   
monitoring by employers, and to certain consumer information; and                                                               
amending Rule 26, Alaska Rules of Civil Procedure."                                                                             
REPRESENTATIVE ERIC CROFT, Alaska State Legislature, came forward                                                               
to testify as the sponsor of HB 278.                                                                                            
CHAIRMAN ROKEBERG asked Representative Croft if he would like the                                                               
committee to adopt HB 278, Version I.                                                                                           
REPRESENTATIVE CROFT explained that, although Version I is titled                                                               
a sponsor substitute, it is actually a committee substitute (CS).                                                               
Number 0099                                                                                                                     
REPRESENTATIVE MURKOWSKI made a motion to adopt the proposed CS,                                                                
LS1229\I, for HB 278.  There being no objection, Version I was                                                                  
adopted as a working draft.                                                                                                     
REPRESENTATIVE CROFT explained that although this is the first                                                                  
committee of referral for HB 278, there are many versions of the                                                                
bill because he has tried to work with government agencies and                                                                  
individuals who would be affected by the bill.  He further                                                                      
explained that originally he had tried to address three areas of                                                                
Alaska's privacy concerns:  the use and distribution of DNA                                                                     
[deoxyribonucleic acid] samples as well as the question of                                                                      
ownership of DNA; the restrictions on and protections for privacy                                                               
in the work place, employee monitoring; and the consumer discount                                                               
cards and what the information obtained from those cards can be                                                                 
used for.  However, Version I doesn't include the DNA section of                                                                
the [original] bill because it is simply an area of such emerging                                                               
technology that has federal and preemption issues.  He believes                                                                 
that [DNA collection and use] is an area that requires much more                                                                
study than he was able to give it at this time.  Therefore, HB 278                                                              
only includes the other two major areas regarding employee                                                                      
monitoring and consumer discount cards.                                                                                         
REPRESENTATIVE CROFT pointed out that both of the two issues                                                                    
remaining in the bill take as their touchstone, notice and                                                                      
permission.  He informed the committee that he tried to say or                                                                  
specify, only in a restricted manner [and] only in limited areas,                                                               
what one can and cannot do either in regard to employee monitoring                                                              
or discount cards.  He said, "It is a piece of legislation that                                                                 
takes as its touchstone, tell them what you're doing and make it a                                                              
openly, negotiated and discussed item, and then we trust the                                                                    
marketplace, if you will, to figure out the proper limits."  In                                                                 
regard to employee monitoring, [an employer] may not monitor an                                                                 
employee without giving the employee notice of that monitoring.  He                                                             
informed the committee that in discussions with the members of the                                                              
information technology group, the people in state government who                                                                
monitor e-mail and other electronics, they say that they already                                                                
[inform employees of the monitoring that takes place].  He                                                                      
indicated that most companies already [inform employees of the                                                                  
monitoring that takes place] and thus an employee knows what to                                                                 
expect.  He pointed out that everyone has been on hold and heard,                                                               
"Your calls may be monitored for your protection."   Whether this                                                               
monitoring is truly for [the consumer's] protection or not, at                                                                  
least [the consumer/caller] is aware of the situation.  Therefore,                                                              
informing the employee and the consumer [of the monitoring]                                                                     
generally satisfies the statute.  However, [the bill prohibits]                                                                 
monitoring an employee in the bathroom or changing area.  This is                                                               
one of the few areas where [that the bill] sets a bar; "but,                                                                    
mainly, in both of those areas, get their permission and then                                                                   
whatever you have agreed to do contractually is up to you."  In                                                                 
regard to discount cards, [a business] can't distribute information                                                             
gained from a discount card from, say, grocery stores without [the                                                              
consumer's] permission.                                                                                                         
REPRESENTATIVE CROFT concluded with some general thoughts about the                                                             
right to privacy.  He pointed out that Alaska is one of the few                                                                 
states that has an explicit right to privacy protected in its                                                                   
constitution.  The origin of the right to privacy is fascinating                                                                
and like most great Alaska stories, it starts in a bar.  In this                                                                
case, Senator Terry Miller and future Representative Fred Brown met                                                             
in Tommy's Elbow Room in Fairbanks to discuss this issue. [From                                                                 
that discussion,] they proposed and introduced [the right to                                                                    
privacy] in the winter of '71/'72.   [The measure,] when put before                                                             
the people, passed in '72 [and] was added to the state's                                                                        
constitution; over 86 percent of the [population] voted in favor of                                                             
adopting that as part of the state's constitution.  He pointed out                                                              
that "unlike most constitutional provisions that tell you what you                                                              
cannot do ... this says,  The right of the people to privacy is                                                                 
recognized and shall not be infringed.  The legislature shall                                                                   
implement this section.'" He surmised that the people and the                                                                   
drafters recognized that privacy was not a right one could protect                                                              
in the negative but rather a right that had to be asserted and it                                                               
also had to be asserted who was going to protect that right for                                                                 
everyone.  Therefore, a positive statement, "The legislature shall                                                              
implement this section." was necessary.  Unfortunately,                                                                         
Representative Croft didn't believe [the legislature has                                                                        
implemented this right].  He pointed out that there was never a                                                                 
1974 omnibus privacy act to follow up on the constitution nor was                                                               
there a 1978, 1982 or 1990 update to the privacy statute.                                                                       
Therefore, if one looks under "privacy" in the constitution, one                                                                
will see a lot of case law, but very few cites from statutes as                                                                 
authority.  He reiterated the need for the legislature to take                                                                  
steps toward implementing this provision.   However, he didn't                                                                  
claim that HB 278 is a complete answer to that.                                                                                 
REPRESENTATIVE CROFT remarked that privacy is not protected simply                                                              
by putting it in the constitution.  If [the legislature] does not                                                               
act, then it is left to the judiciary.  He noted that some                                                                      
legislators complain about judicial activism in that the judiciary                                                              
has stepped into areas that it shouldn't, which may be a fair                                                                   
criticism in some cases.  However, [with privacy] he didn't believe                                                             
it's fair [to criticize the judiciary] when, despite a                                                                          
constitutional mandate, [the legislature] hasn't stepped in and                                                                 
cited appropriate parameters in this area.  Representative Croft                                                                
believed that this is a first step and indicated that the                                                                       
legislature has an obligation to discuss the privacy rights of the                                                              
people of the state of Alaska.                                                                                                  
Number 0679                                                                                                                     
REPRESENTATIVE MURKOWSKI wondered how this ties in with the banking                                                             
industry.  She pointed out that banks want to make sure that they                                                               
have some means of identifying a bank robber who's coming in.                                                                   
Therefore, the cameras in banks monitor the bank 24 hours a day.                                                                
In addition to providing security for the bank, the cameras                                                                     
[monitor employees] to make sure that someone doesn't, say, slip                                                                
something from the drawer into their pocket.  Having worked in a                                                                
bank, Representative Murkowski knows that [bank employees] sign off                                                             
on certain things and know that the cameras are there.  She                                                                     
inquired as to what else would have to be done in terms of [this                                                                
bill's] restrictions and/or notice requirements when, for the                                                                   
protection of the employees, [the employer] needs to have the                                                                   
surveillance going.  She asked if the idea is:  "Okay, well, you're                                                             
on notice that you're going to be under surveillance all the time."                                                             
REPRESENTATIVE CROFT referred to Section 1, subsections (b) and (c)                                                             
and noted that a distinction is made between a more particular                                                                  
notice and a more general notice.  He pointed out that currently                                                                
there is no requirement that notice be given.  He said he believes                                                              
that providing notice is a practice that a good company would                                                                   
pursue.  However, a company could monitor an employee without                                                                   
permission, which is what "we" want to prohibit.  Subsection (b)                                                                
states that "the employer shall provide written notice of the                                                                   
monitoring to each employee."  The notice must specifically inform                                                              
the employee as to the type of information to be collected, the                                                                 
means by which the information is collected, the times when                                                                     
monitoring is to occur, the location of the monitoring equipment,                                                               
how the information collected will be used and the identity of the                                                              
employees who will be monitored.  He turned to subsection (c) which                                                             
states, "if an employer engages in electronic monitoring that will                                                              
have the direct or indirect effect of monitoring a person other                                                                 
than an employee, the employer shall provide notice to those whose                                                              
conduct may be monitored."  He posed a situation in which there                                                                 
would be a camera in the parking lot or in the entire work area of                                                              
the main bank floor.  There would be a sign informing people that                                                               
they are under surveillance.  The bill does not indicate that the                                                               
employee has to sign off on the notice.                                                                                         
REPRESENTATIVE MURKOWSKI interjected and stated that she did not                                                                
sign anything, but was simply told [about the monitoring].                                                                      
REPRESENTATIVE CROFT stated that the same standard [would be held                                                               
in the bill].  He said that he didn't want [monitoring to be] done                                                              
covertly but rather openly.  In a bank one would probably                                                                       
understand being under surveillance.  Therefore, there would be                                                                 
specific notice for the bank employees, while only very general                                                                 
notification to other people that they are under surveillance.                                                                  
Number 0909                                                                                                                     
REPRESENTATIVE MURKOWSKI wondered if a bank robber would have the                                                               
defense that he/she did not see the sign indicating they were under                                                             
REPRESENTATIVE CROFT said this does not establish a defense to a                                                                
criminal action.  Representative Croft read Section 1(c) and                                                                    
indicated that the notice of the monitoring could take the form of                                                              
a sign on the entrance [to the building/office].  He reiterated                                                                 
that if one works in a bank, one should probably expect a certain                                                               
amount of that [monitoring].  He posed a situation in which an                                                                  
employee works in a desk job and is told that all of his/her                                                                    
outgoing calls will be monitored, there will be 24-hour video                                                                   
surveillance and every e-mail will be read by the president of the                                                              
company.  Such  a situation would technically fit this bill in that                                                             
it would be known [that such monitoring is occurring], although it                                                              
wouldn't prohibit it.                                                                                                           
CHAIRMAN ROKEBERG recognized that the committee was joined by                                                                   
Representatives Halcro and Sanders as well as former                                                                            
Representatives Bettye Davis and Caren Robinson.                                                                                
Number 1014                                                                                                                     
REPRESENTATIVE HALCRO directed attention to page 3, lines 29-31,                                                                
which defines "electronic monitoring" or "monitoring."  He wasn't                                                               
sure that bank security would fall under that [definition].  He                                                                 
asked, "Wouldn't it apply on page 2, lines 28 through 31, where it                                                              
talks about it's not necessary if the employer is acting in                                                                     
cooperation with law enforcement; ... could that be an argument                                                                 
there?"  He posed the situation in which a bank with a video camera                                                             
is robbed and the video tape is given to the police.  In that case,                                                             
[providing the video tape] would be considered cooperating with law                                                             
REPRESENTATIVE CROFT referred to page 4, line 1, and indicated that                                                             
it would comply as "camera" is referenced.  In regard to the                                                                    
language at the bottom of page 2, it specifies that the law                                                                     
enforcement officers "are proceeding under a search warrant."  He                                                               
explained that monitoring should be for the purpose of preventing                                                               
theft and thus the bank could monitor for sound as well as sight                                                                
due to concerns of money being stolen from the bank.  In                                                                        
Representative Croft's opinion, it becomes a law enforcement issue                                                              
when [the bank] doesn't want to inform them because the bank wants                                                              
to catch [the person stealing money].  If the desire is to monitor                                                              
[employees] without telling them, then Representative Croft wanted                                                              
that entity to talk with a neutral observer, such as judge, with a                                                              
search warrant in the situation outlined above.                                                                                 
REPRESENTATIVE MURKOWSKI continued with the bank scenario and the                                                               
location of the monitoring equipment.  She pointed out that one of                                                              
the criteria for the notice requirement [established in the bill]                                                               
is that the employee is to be informed of the location of the                                                                   
monitoring equipment.  She asked if that would mean that there                                                                  
would have to be specific references to the location of the                                                                     
surveillance cameras.  She indicated that such information would                                                                
lead to [an employee who is interested in stealing] to do the                                                                   
misdeed in an area where he/she cannot be spotted [by the cameras].                                                             
Therefore, she inquired as to how much information is going to be                                                               
given [to the employees].  Representative Murkowski said, "If I'm                                                               
a bank employee, I would just understand that ... I'm going to be                                                               
under surveillance all the time, that's part of my job."  However,                                                              
she didn't know that all the cameras in the room should be                                                                      
identified in order to comply with the notice requirement.                                                                      
REPRESENTATIVE CROFT expressed concern that [the                                                                                
language/requirement] is specific enough that [the employee] would                                                              
know the reasonable expectation of privacy he/she would have in                                                                 
that area.  Therefore, the exact location of the cameras isn't                                                                  
vital.  He specified that he wanted employees to know how and when                                                              
they are being monitored generally and what is the monitoring being                                                             
used for.  He suggested that the language on page 2, line 4, could                                                              
be changed to language such as "location to be monitored" or other                                                              
language that expresses that a certain floor or area will be                                                                    
monitored versus the specific location of each camera.                                                                          
REPRESENTATIVE MURKOWSKI indicated agreement with the language                                                                  
suggestions of Representative Croft.                                                                                            
Number 1302                                                                                                                     
CHAIRMAN ROKEBERG inquired as to Alaska's current law in regard to                                                              
a business' right to monitor its employees.                                                                                     
REPRESENTATIVE CROFT answered:  "I know of no statutory limits on                                                               
them doing it and it would only be in case law."  He noted his                                                                  
impression that it is virtually unlimited.                                                                                      
CHAIRMAN ROKEBERG noted that he [sponsored] a bill on this topic a                                                              
couple of years ago.  However, his bill attempted to define what                                                                
rights employers had and by doing so, establish the rights of                                                                   
employees at the same time.  Chairman Rokeberg recalled that it is                                                              
currently proper for employers to monitor activities of its                                                                     
employees, including listening to [an employee's] telephone                                                                     
conversations and accessing their computers.  He believed that his                                                              
bill and this bill speak to the same type of issues relating to                                                                 
issues that occurred in Fairbanks [at the university] and in                                                                    
Anchorage at the Cook Inlet Region, Incorporated (CIRI), in [both                                                               
cases] an employee accessed child pornography via their work                                                                    
computer.  Chairman Rokeberg inquired as to what would happen in                                                                
the situation in which a caller booking an Alaskan airlines flight                                                              
is notified that his/her call is being monitored.                                                                               
REPRESENTATIVE CROFT said that he did remember Chairman Rokeberg's                                                              
bill.  He remarked that he has experienced unexpected criticism of                                                              
this bill due to the bill's effect of limiting the rights of                                                                    
employees.  He explained that [prior to this legislation] there was                                                             
a question in regard to how much one could do as it wasn't clear in                                                             
the case law.  Therefore, this bill would say that if [an employer]                                                             
tells [an employee] what is being done, then it can be done and                                                                 
thus any question in regard to monitoring would be resolved through                                                             
notice.  Representative Croft clarified that he didn't want to                                                                  
establish such a complete bar that it's unreasonable on one end or                                                              
so wide open that it's unreasonable on the other end.  Therefore,                                                               
the middle ground becomes the notification [requirements] with a                                                                
few specific limits such as no monitoring in the bathroom/changing                                                              
area without a warrant.                                                                                                         
REPRESENTATIVE CROFT recalled discussions of the computer issue [as                                                             
related to Chairman Rokeberg's bill].  He also recalled discussions                                                             
of the situation in which an employee places his/her wallet/purse                                                               
in an empty file cabinet drawer, which is owned by the employer.                                                                
He asked if, in such a situation, [the file cabinet] could be                                                                   
searched since it is owned by the employer.  Representative Croft                                                               
emphasized that because an [employee's] property is on a location                                                               
that is owned by the employer, it is not the "end all" of the                                                                   
employee's privacy rights.  A similar situation would exist when an                                                             
employee's information is on the hard drive of an employer-owned                                                                
computer.  Therefore, Representative Croft preferred that such                                                                  
[situations] be addressed in order that people know what they can                                                               
and cannot do.  In regard to the Alaska Airlines monitoring of                                                                  
telephone calls, he believed that notification is given due to the                                                              
probability of people being outraged if they weren't informed of                                                                
the monitoring.                                                                                                                 
CHAIRMAN ROKEBERG interjected his understanding that it is legal to                                                             
do that to people in the state of Alaska without informing them.                                                                
REPRESENTATIVE CROFT acknowledged that was his understanding as                                                                 
Number 1599                                                                                                                     
CHAIRMAN ROKEBERG remarked that it is ironic that both he and                                                                   
Representative Croft have come to the same conclusion from                                                                      
different venues.  He noted that one of the primary intentions of                                                               
his bill was to inform businesses and employees of their rights;                                                                
there should be a written policy of that.  Chairman Rokeberg said                                                               
that he believes the bill should also speak to the use of evidence                                                              
that is obtained with or without permission.  He inquired as to                                                                 
what would happen in a court of law when there is a video tape of                                                               
a crime being committed.  He further asked whether it would be an                                                               
affirmative defense to say that privacy rights had been abridged;                                                               
what would happen in terms of the fruits of the [poisonous tree]                                                                
argument?  He asked if it would be helpful to add a provision to                                                                
the bill that stating that any evidence gained would not be                                                                     
excluded from the prosecution of a criminal act.                                                                                
REPRESENTATIVE CROFT directed the chairman's attention to page 3,                                                               
subsection (g), which specifies [when and to whom] an employer may                                                              
disclose information obtained through monitoring, which partially                                                               
addresses the chairman's concerns.  Representative Croft noted that                                                             
there have been some concerns in regard to the courts directing [an                                                             
employer to disclose information obtained through monitoring],                                                                  
which isn't quite the same as paragraph (3) and thus a paragraph                                                                
(4) could be added to specify disclosure per a court order.                                                                     
Number 1719                                                                                                                     
REPRESENTATIVE HALCRO turned to the CIRI case [in which an employee                                                             
was found to be accessing child pornography via his computer at                                                                 
work].  He informed the committee that the [inappropriate activity]                                                             
was discovered when the employee's computer was sent out to be                                                                  
repaired.  The information was turned over to the police and the                                                                
employee was prosecuted.  Therefore, Representative Halcro surmised                                                             
that it is legal to turn over such information to a law enforcement                                                             
agency.  He expressed concern that the ability to prosecute would                                                               
still be available in such a case, even in a case in which the                                                                  
employer didn't have an established policy stating that the                                                                     
employee's computer and equipment would be monitored.                                                                           
REPRESENTATIVE CROFT said that he read the language "may disclose"                                                              
on page 3, subsection (g), as allowing disclosure [to a law                                                                     
enforcement agency].  He said [referring to page 1, subsection                                                                  
(b),] that he also read "Before an employer engages in electronic                                                               
monitoring of an employee, the employer shall ..." [to allow                                                                    
disclosure to a law enforcement agency].  Therefore, both would                                                                 
have the ability to turn over [information obtained through                                                                     
monitoring] to law enforcement and be in continuing violation of                                                                
the statute.  He related his understanding that under current                                                                   
[statute] if [an employer] is doing monitoring that it shouldn't,                                                               
that information could be turned over to law enforcement; however,                                                              
[the employer] should provide a policy or else the employer is in                                                               
continuing violation and may be fined [for] improperly monitoring                                                               
employees.  Still, such an employer is not barred from turning the                                                              
information over to the police.                                                                                                 
CHAIRMAN ROKEBERG related his understanding that currently, the                                                                 
employer has the right to assert his rights through his property                                                                
and all activities on the premises.  He believes this is the common                                                             
REPRESENTATIVE CROFT remarked that he was not sure.                                                                             
CHAIRMAN ROKEBERG clarified that he wasn't sure that this had been                                                              
tested in the State of Alaska, given the state's constitutional                                                                 
REPRESENTATIVE CROFT agreed that would be the general parameters.                                                               
However, he pointed to the women's changing room example.  That                                                                 
changing room is clearly on property owned by the employer.  If the                                                             
rule is that [the employee] can be monitored on the employer's                                                                  
property without notice, "then what is the possible legal problem                                                               
with that?"  Yet, it's known that something is wrong with                                                                       
[monitoring in a changing area/bathroom].  Therefore,                                                                           
Representative Croft suspected that Chairman Rokeberg was correct                                                               
in general, but there would still be instances which would cross                                                                
the line.                                                                                                                       
CHAIRMAN ROKEBERG commented that there would probably be case law                                                               
on those [special instances].                                                                                                   
Number 1886                                                                                                                     
REPRESENTATIVE MURKOWSKI referred to Section 3(b)(1) and inquired                                                               
as to what is a promotional offer.  She expressed concern regarding                                                             
the term "promotional offers."                                                                                                  
REPRESENTATIVE CROFT explained that part of the information is the                                                              
[consumer's] name, address and phone number; the billing statement                                                              
is one of the legitimate uses of that information.  Furthermore, he                                                             
didn't want to necessarily prohibit the use of that information for                                                             
that particular store's commercial promotional offers.  However,                                                                
this does fall under the section saying that a retailer may release                                                             
consumer information.                                                                                                           
REPRESENTATIVE MURKOWSKI inquired as to whom this information is                                                                
being released.                                                                                                                 
REPRESENTATIVE CROFT stated that in regard to the billing statement                                                             
area, a separate company may perform the billing.  He pointed out                                                               
that Section 3(b) only [applies] when a [consumer] has said no.                                                                 
Perhaps it makes sense to delete "or promotional offers".                                                                       
CHAIRMAN ROKEBERG noted that scanners for club card memberships                                                                 
provide that business with buying patterns of consumers.  He                                                                    
surmised that Representative Croft wished to prohibit the resale of                                                             
that information, but not the use of that information internally.                                                               
REPRESENTATIVE CROFT clarified that [the bill] prohibits the resale                                                             
[of consumer information] without the permission of that consumer.                                                              
There is a range of conduct here from justifiable to outrageous.                                                                
Number 2165                                                                                                                     
PAM LaBOLLE, President, Alaska State Chamber of Commerce, said that                                                             
the Alaska State Chamber of Commerce is concerned with HB 278.                                                                  
First, she inquired as to the need of the legislation; "Who are we                                                              
protecting?  Has there been widespread abuse?"  She noted that she                                                              
has not seen a need a for this.  Furthermore, she echoed earlier                                                                
comments that [those doing inappropriate actions] would do so in                                                                
the areas that are not monitored.  She pointed out that [an                                                                     
employer] can't call the police because they suspect something                                                                  
because, in most cases, the police have to have some reason to                                                                  
involve themselves.  She asked if the police can do surveillance                                                                
under this.                                                                                                                     
MS. LaBOLLE said that this protects those that are engaged in                                                                   
criminal activity.  She posed a situation in which an employer is                                                               
informed that an employee receiving workers' compensation is doing                                                              
so fraudulently.  She asked, "Where does your ability to observe or                                                             
to monitor their [an employee's] activities go?"  She also posed a                                                              
situation in which [an employee's] inappropriate activities are                                                                 
taking place in the bathroom.  She turned to those employees that                                                               
work out of the home via computers that are networked to their                                                                  
employer's computers; nothing can be done to monitor that                                                                       
employee's activities outside of the place of employment.  She                                                                  
indicated that [if the monitoring occurs] during working hours,                                                                 
then the illegal activity would take place after working hours.                                                                 
She asked, "What about drug dealing or things like that, which will                                                             
primarily take place in restrooms and locker rooms and such?"  Ms.                                                              
LaBolle turned to the situation of a customer complaining that an                                                               
employee was rude on the phone.  [The employer] cannot report back                                                              
to the customer, without that employee's permission.  She said,                                                                 
"Illegal to look at your own phone data, if it's monitored and                                                                  
collected off-premises through a phone bill and you get the phone                                                               
bill back."  In conclusion, Ms. LaBolle reiterated that the Alaska                                                              
State Chamber of Commerce has great concerns with this bill.                                                                    
REPRESENTATIVE CISSNA asked Ms. LaBolle how this legislation would                                                              
be a problem in the arena of sexual harassment.                                                                                 
MS. LaBOLLE pointed out that if there are places in which [an                                                                   
employer] can't observe [monitor], then there would not be the                                                                  
evidence to bring [the situation] to a search warrant.                                                                          
REPRESENTATIVE CISSNA surmised that if there is enough evidence                                                                 
that criminal activity of some kind is occurring, then a search                                                                 
warrant could be obtained and obtained secretly. [A portion of                                                                  
Representative Cissna's statements were not recorded due to the                                                                 
tape reversing to Side B.]                                                                                                      
TAPE 00-45, SIDE B                                                                                                              
Number 0010                                                                                                                     
MS. LaBOLLE replied that if an employee brings to [an employer's]                                                               
attention that he/she is being harassed, then that is the easier                                                                
way to follow this.  However, she posed a situation in which [an                                                                
employer] suspects such a situation, but no one has the courage to                                                              
come forward and inform [the employer] who then has to find this                                                                
out in other ways of observation and collection of information.                                                                 
REPRESENTATIVE CISSNA remarked that she had never worked for a                                                                  
place that monitored for problems ahead of time.  She guessed that                                                              
it sounded fairly intrusive and suspicious.  In the cases she has                                                               
heard of regarding sexual harassment, it was difficult to get a                                                                 
court to accept it and often, the employer is the least eager to                                                                
find out.                                                                                                                       
MS. LaBOLLE reiterated the point that there hasn't been much abuse                                                              
in the area of monitoring employees.  This is not a problem that                                                                
one hears about nor is it of widespread concern.                                                                                
REPRESENTATIVE CISSNA pointed out that more and more monitoring is                                                              
occurring.  She interpreted Ms. LaBolle as meaning that it would be                                                             
dangerous not to have a camera in the bathroom.                                                                                 
MS. LaBOLLE clarified that she was not suggesting that cameras be                                                               
placed in bathrooms.  However, there must be ways to monitor,                                                                   
through access codes, who was in the changing room during certain                                                               
times or who reported to work; that would be the collection of                                                                  
information electronically.  Ms. LaBolle asked why personal                                                                     
observation would be better than electronic observation or                                                                      
collection of data that indicates a specific activity.                                                                          
Number 0149                                                                                                                     
REPRESENTATIVE HALCRO agreed that this is an area in which one                                                                  
should proceed very cautiously.  From an employer's standpoint, as                                                              
Representative Halcro noted he is, this is the type of legislation                                                              
he didn't mind.  If employees are given notification that they are                                                              
being [observed], some actions that are against public policy may                                                               
be eliminated ahead of time.  For example, his company had problems                                                             
with employees that felt they could take a car home and others felt                                                             
that they could fill their car with gas since there is a gas pump                                                               
on the premises.  About a year ago, Representative Halcro's company                                                             
had closed circuit cameras installed, posted [notification] signs                                                               
and briefed employees [on the monitoring] and since then, there                                                                 
hasn't been a problem with missing cars or stolen gas.  He noted                                                                
that one of his jobs in college was with a department store in                                                                  
which the department store informed employees that one way to deter                                                             
shoplifters is to approach the customer to let them know someone is                                                             
there and watching.  Representative Halcro informed the committee                                                               
that alarm companies tell [homeowners] that the stickers placed in                                                              
the windows deter probably 95 percent of the burglaries, which is                                                               
another example in which forewarning can deter undesired actions.                                                               
MS. LaBOLLE indicated that some may be frightened when they are                                                                 
informed that their call may be monitored.  Furthermore, not                                                                    
everyone has such a system.  Although Ms. LaBolle agreed that                                                                   
announcing that monitoring will take place is an excellent                                                                      
deterrent, [the Alaska State Chamber of Commerce] has questions                                                                 
concerning the parameters of this legislation and how it would                                                                  
restrict the employer's ability to know what is going on with                                                                   
his/her employees on his premises or with employees that are doing                                                              
business off-premises.                                                                                                          
Number 0383                                                                                                                     
CHAIRMAN ROKEBERG remarked that this isn't a contest between the                                                                
bill he introduced a couple of years ago and Representative Croft's                                                             
legislation.  He suggested that HB 278 takes away the rights that                                                               
a business may currently have, which is different than his bill,                                                                
and places a duty on businesses to make a proactive step.                                                                       
Therefore, [HB 278] would change existing law.                                                                                  
REPRESENTATIVE HALCRO said that he understood that.  However,                                                                   
taking a proactive stance means that one protects oneself against                                                               
possible future losses.  As an employer, he indicated that he                                                                   
didn't have a problem with informing his employees about [the                                                                   
monitoring practices] of the company as it may deter some employees                                                             
from doing things that are prohibited by company policy.                                                                        
CHAIRMAN ROKEBERG clarified that his point is that this legislation                                                             
is a blanket prohibition.  However, Chairman Rokeberg's legislation                                                             
took the approach to mandate an employee agreement to inform the                                                                
employee, but if that employer didn't then it wouldn't default the                                                              
victim; it would shift from the employer to the employee.  In                                                                   
either approach, the intent is to inform the employee.  He asked                                                                
Ms. LaBolle if that is what the state chamber and the people of                                                                 
business procedures throughout this state and the country                                                                       
recommend.  He commented that usually the more sophisticated                                                                    
businesses have written agreements and notifications for employees,                                                             
particularly in regard to electronic monitoring "but not                                                                        
necessarily about monitoring the gas pump with a camera, which this                                                             
bill would require."                                                                                                            
MS. LaBOLLE agreed that the state chamber always encouraged good                                                                
and complete employee written policies.  However, she indicated                                                                 
that there are a number of small businesses that aren't                                                                         
sophisticated in this matter.  She said that requiring the                                                                      
employee's consent before [an employer] can use any of the                                                                      
information that was collected electronically is quite limiting to                                                              
an employer's ability to deal with some sources of employee                                                                     
CHAIRMAN ROKEBERG asked if anyone else would like to make any                                                                   
comments.  There being no one, he turned to committee questions.                                                                
Number 0611                                                                                                                     
REPRESENTATIVE SANDERS posed a situation in which a camera is in                                                                
use and there is a sign specifying that surveillance is occurring;                                                              
however, the sign is torn down at some point.  If a crime is                                                                    
committed in that area under surveillance after that sign was torn                                                              
down, could a lawyer get [the case] thrown out of court because the                                                             
sign was not present as evidence?                                                                                               
REPRESENTATIVE CROFT remarked that lawyers can attempt many things.                                                             
However, in such a case Representative Croft believes that                                                                      
reasonable attempts had been made to serve notice of monitoring.                                                                
Furthermore, he didn't believe there is a prohibition on making                                                                 
things evidentiary, particularly because [the surveillance] can be                                                              
turned over to law enforcement whether it complied or not.                                                                      
REPRESENTATIVE SANDERS asked if [the surveillance] can be used [by                                                              
law enforcement].                                                                                                               
REPRESENTATIVE CROFT responded that there is no prohibition against                                                             
[law enforcement] using [the surveillance], and furthermore there                                                               
is a direct command for [the surveillance] to be turned over.                                                                   
Therefore, Representative Croft didn't believe there would be any                                                               
bar to doing it.  The bill doesn't say that these things can't be                                                               
used in criminal court.  Clearly, the bill specifies that                                                                       
[surveillance] can be turned over to law enforcement.                                                                           
REPRESENTATIVE SANDERS emphasized that he didn't want to pass                                                                   
anything that would, even accidentally, protect criminal activity.                                                              
REPRESENTATIVE CROFT said although he was sure that wasn't the                                                                  
case, one could always include language that is more assuring.  For                                                             
example, the following provision could be inserted:  "any violation                                                             
here shall not be used to invalidate evidence in a trial."                                                                      
CHAIRMAN ROKEBERG pointed out that there is case law in Alaska.                                                                 
The aforementioned case in Fairbanks involved a university employee                                                             
who had pornography and the point of contention was whether the                                                                 
pornography was on his zip drive or his hard drive.  Therefore, the                                                             
university couldn't fire this employee and had to place him on                                                                  
administrative leave and pay this employee during the time period                                                               
that the case was being litigated.  That seems ludicrous.  Chairman                                                             
Rokeberg identified one of the problems with this bill as the                                                                   
default on the part of the employer to do something while the other                                                             
approach is to codify what is and is not legal.  Furthermore, the                                                               
other approach assumed that the common law wasn't prohibited unless                                                             
specifically prohibited.                                                                                                        
REPRESENTATIVE CROFT turned to Ms. LaBolle's comments that there is                                                             
not a need for this [legislation].  However, the problem is that it                                                             
is an uncertain area and thus the question becomes: "shouldn't the                                                              
legislature define some parameters?"  He pointed out that there are                                                             
abuses from the employers to abuses that pose the question as to                                                                
whether they can even be sanctioned.  Therefore, such breadth                                                                   
indicates the need for some parameters.  He said, "If you can't                                                                 
even know whether you can use it when you find that kind of                                                                     
criminal activity or whether it's okay for them to monitor the                                                                  
changing room, it is an area that needs to have some standards put                                                              
CHAIRMAN ROKEBERG said that he agreed with Representative Croft.                                                                
Number 0848                                                                                                                     
REPRESENTATIVE HALCRO acknowledged that this is an area in which                                                                
[the legislature] should proceed cautiously.  However, he was not                                                               
sure that he could differentiate between the arguments as to                                                                    
whether [the employer] should tell [the employee] or has to tell                                                                
[the employee].  To him, it seemed to be the same thing.  As an                                                                 
employer, he wanted to inform and should inform [his employees] as                                                              
it will hopefully deter [impropriety].  If an employer is forced by                                                             
law to inform employees that his/her e-mails or websites visited                                                                
during the day are being monitored, he hoped that would deter                                                                   
people from being at sites they shouldn't.                                                                                      
CHAIRMAN ROKEBERG interjected and noted that is the current law.                                                                
REPRESENTATIVE HALCRO stated that he is not sure of the                                                                         
distinction.  He posed a situation in which a small two-person                                                                  
operation wants to stop theft from the petty cash box.  If a camera                                                             
or two-way mirror is installed, he believes the employees should be                                                             
informed of [that monitoring].  He reiterated that he is not sure                                                               
[of the distinction] between should [the employees] be told, does                                                               
[the employer] have to tell them or is it the law?                                                                              
CHAIRMAN ROKEBERG specified that under this bill if [an employer]                                                               
has a monitor on the gas pump, [the employer] would have an                                                                     
affirmative mandate to inform [the employees].                                                                                  
REPRESENTATIVE HALCRO questioned why he [, as an employer,]                                                                     
wouldn't want to tell him/her.  He asked why [an employer]                                                                      
shouldn't put a sign up specifying that the gas pump is being                                                                   
CHAIRMAN ROKEBERG remarked, "Because I just paid $5 million for the                                                             
building and I don't want to put a sign up there."                                                                              
REPRESENTATIVE HALCRO commented that if an employer paid $5 million                                                             
for a building, then paying for an 8 + x 11 sign wouldn't be of                                                                 
Number 0975                                                                                                                     
CHAIRMAN ROKEBERG reiterated his belief that he and Representative                                                              
Croft both agree that any employer should have a written policy and                                                             
explain to employees what the employee should and shouldn't do as                                                               
well as what the employee can expect in regard to privacy.                                                                      
REPRESENTATIVE HALCRO agreed.                                                                                                   
REPRESENTATIVE CISSNA noted that sometimes there is a need for                                                                  
privacy.  She expressed the need to know "the lay of the land" [the                                                             
rules of the work environment] and that is a right.                                                                             
CHAIRMAN ROKEBERG agreed.                                                                                                       
REPRESENTATIVE CISSNA remarked that respect for an employee leads                                                               
to good morale and more loyalty. [This legislation] does more than                                                              
just protect rights as she believes it would build "a better sense                                                              
among the employees."                                                                                                           
REPRESENTATIVE HALCRO informed the committee of the following true                                                              
case that was related to him by a judge.  In this case a guy went                                                               
into a convenience store and purchased a soda.  The store clerk was                                                             
confrontational for no reason and after the customer left, the                                                                  
clerk called the police alleging that the customer had harassed the                                                             
clerk and thus the customer was arrested.  This new clerk didn't                                                                
know that the convenience store had a video camera monitoring the                                                               
cash register.  Therefore, the video tape would be used in order to                                                             
determine who is telling the truth.  Representative Halcro believes                                                             
the question becomes whether such a situation would have happened                                                               
had the clerk known that the area was being monitored.  He believes                                                             
that situation supports having signs that inform [the employee]                                                                 
that monitoring is occurring.                                                                                                   
CHAIRMAN ROKEBERG related his distaste for signs.  He commented                                                                 
that this is an important issue.  Furthermore, he felt that the                                                                 
employment law in Alaska needs some public policy direction.                                                                    
Chairman Rokeberg requested that Representative Croft work with the                                                             
business community and return to this committee with a bill that                                                                
everyone can agree upon.                                                                                                        
There being no further business before the committee, the House                                                                 
Labor & Commerce Standing Committee was adjourned at 4:40 p.m.                                                                  

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