Legislature(1999 - 2000)
03/03/2000 01:40 PM Senate JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
March 3, 2000
1:40 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Rick Halford, Vice-Chairman
Senator John Torgerson
MEMBERS ABSENT
Senator Dave Donley
Senator Johnny Ellis
COMMITTEE CALENDAR
SENATE BILL NO. 259
"An Act relating to criminal impersonation."
-HEARD AND HELD
PREVIOUS SENATE COMMITTEE ACTION
SB 259 - See Judiciary Committee minutes dated 2-21-00.
WITNESS REGISTER
Ms. Anne Carpeneti
Department of Law
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Supports SB 259
Mr. Blair McCune
Public Defender
900 West 5th Avenue, #200
Anchorage, Alaska 99501
POSITION STATEMENT: Testified on SB 259
ACTION NARRATIVE
TAPE 00-11, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:40 p.m. and brought up SB 259 as the first order of
business.
SB 259-THEFT OF IDENTITY
SENATOR TORGERSON moved to adopt CSSB 259, version I. There being
no objection, the motion carried.
MS. ANNE CARPENETI, representing the Criminal Division of the
Department of Law (DOL), stated DOL is in support of CSSB 259. The
bill contains many of the provisions DOL feels is important in
bringing the Alaska statutes up to date in terms of theft of
identity. The bill changes "theft of an act of a credit card" to
"theft of an access devise," allowing theft of numbers as well as
the theft of a credit card and other devices. CSSB 259 also
changes "fraudulent use of a credit card" to "fraudulent use of an
access device" for the same reason. Fraudulent use of an access
devise is conduct where a person obtains property by fraudulent
means using an access devise. The penalty scheme is changed to
reflect that of theft, so that fraudulent use of an access devise
where property or services are obtained in the amount over $25,000
is a class B felony. The bill changes other parts of the statutes,
in terms of obtaining credit cards by fraudulent means, to include
obtaining an access devise or identification (ID) document by
fraudulent means. Criminal impersonation in the first degree
addresses the situation where an individual is victimized by
another person who has obtained a document or number, then opens
accounts, buys goods, obtains credit cards, opens bank accounts,
etc., harming the financial reputation of the owner of the
identity. Criminal impersonation in the second degree is thereby
created which provides that it is a class A misdemeanor. "Business
record" is amended to include "recordings" and expands the crime
of criminal use of the computer. This involves hacking into a
computer or exceeding authorization to use a computer, acquiring
personal information and adding it to the system so it will either
harm or enhance a persons record.
Number 362
CHAIRMAN TAYLOR asked for clarification of the word "aural" which
is in the title of the bill and throughout the document.
MS. CARPENETI responded it was added by legislative affairs, the
drafter was probably trying to put the statute in conformity with
other similar statutes. She said she would research the question
and provide the committee with an answer.
SENATOR TORGERSON asked why "credit card" is being removed from the
bill and is replaced with "access devise."
MS. CARPENETI answered the term "access devise" gives a broader
definition.
MR. BLAIR MCCUNE, Deputy Director for the Public Defender Agency,
stated he is concerned about the breadth of the bill. A few
principals should be kept in mind when looking at something like
this. First of all, normal commercial activity or computer
practices over the Internet should not be outlawed. Second,
because these are property crimes the penalty of the offense should
be related to the actual harm caused. Financial and property
crimes should to linked to a value for the type of theft or loss in
monetary terms. Third, mental state should be carefully worded so
that things done by mistake or for curiosity or just poking around
are not made illegal. The law should be for things done knowingly
and with intent to defraud.
MR. MCCUNE said there are no problems with sections 1 and 2. In
section 3 the wording "access devise" gives the public defender
some concern. The definition on page 6 includes any type of ID
number, such as a drivers license, social security number, bank
account number, or credit card number that is capable of being
used, alone or in conjunction with another access devise. This is
getting at data that might be collected in the course of normal
commercial activity and could possibly be considered an access
devise.
MR. MCCUNE is not too concerned with the theft statute because it
has "intent to permanently deprive another person of property."
Section 4, subsection (b), does a good job of linking the harm to
some kind of value or property that a person loses--this is key,
and he hopes it will be a guiding principal.
Mr. McCune said subsection 5 has an over breadth problem because
the definition of "access devise" is too broad. An access devise
can be a drivers license number, social security number or
something along these lines instead of a credit card.
MR. MCCUNE is not concerned with subsections 2 and 3 because they
say "with intent to defraud."
Section 6, subsection 2, deals with criminal impersonation in the
first degree--the damage does not quantify for the crime.
Section 10 makes deceptive business practices a class C felony if
a computer is used. Computers are used so much in business
practice that it might be better to link the crime with either
"value" or "harm caused," rather than the fact that a computer has
been used. It should not be a class C felony if the value lost is
$50.00.
Section 11 is a very complicated and broad statute. People tend to
exceed access just out of curiosity, this should be taken into
consideration.
The public defender would like "intent to defraud" or "intent to
commit a crime" used more in this bill.
Number 983
CHAIRMAN TAYLOR asked if section 11, subsection (a), "A person
commits the offense of criminal use of a computer if, having no
right to do so or any reasonable ground to believe the person has
such a right, the person knowingly accesses, [OR] causes to be
accessed, or exceeds the person's authorized access to a computer,
computer system, computer program, computer network, or any part of
a computer system or network, and, as a result of or in the course
of that access," will give the law some leverage when dealing with
the type of crime that is commonly referred to as the "APSIN
scandal?"
MR. MCCUNE responded he does not know, but it might.
Number 1233
CHAIRMAN TAYLOR commented that under existing state law this
offense is a class A misdemeanor and under federal law it is a
felony.
MR. MCCUNE stated that almost every phrase in the federal law
begins with "knowingly and with intent to defraud," and ends with
"obtains of anything of value aggregating $1,000 or more during
that period," giving the law a tight mental state and value.
MR. MCCUNE remarked that Washington, being the technological
capitol, has a statute on computer trespass in the first degree
which is simple, direct and easy to understand. A class C felony
is created if a person is in a computer without access and
intentionally gains access to the system, and then intentionally
commits another crime. In Alaska this is a class A misdemeanor.
MR. MCCUNE noted the federal law has a similar definition of access
devise but it is directed more toward financial accounts, than
social security numbers.
CHAIRMAN TAYLOR asked where Mr. McCune would like the intent
language changed.
MR. MCCUNE answered that in the fraudulent use of an access devise
"intent to defraud" should be added and a value should also be
added. Section 5 is a concern, and "knowingly and intent to
defraud" needs to be added to section 1. Section 6 has a lack of
value related to the harm, and a class B felony should not be
considered if there is a quick fix for the damage done.
Number 1355
MS. ANNE CARPENETI stated she is concerned about putting "culpable
mental state," and "knowingly with intent to defraud," in one act.
Two culpable mental states should not be in one act because one
includes the other. Culpable mental state is very difficult to
prove because "knowing conduct," "criminal negligent conduct" and
"reckless conduct" have to be proven.
MS. CARPENETI said the reason a dollar amount was not added to
section 6 is because it is hard to quantify a financial reputation.
The person whose identity is stolen is not now considered the
victim, the vendor is the victim. Loss of identity is a continuing
offense and a number cannot be put on that damage. The state will
have to prove that the person has a stolen identification document
or access devise for the purpose of opening an account, obtaining
an access devise, or obtaining property and services, and that the
financial reputation of the other person has been damaged.
Number 1497
SENATOR HALFORD asked if a class B felony will be created if a
person obtains a false ID, buys alcohol and leaves without paying
the bill.
MS. CARPENETI responded she is not sure, but it is not the intent
of SB 259 to make this type of crime a class B felony.
SENATOR HALFORD asked if there is a provision for changing the
victim's social security number.
Number 1892
MR. MCCUNE stated that the term "need knowingly" would be needed
with "intent to defraud" under Alaska law. The language "with
intent to defraud" covers mental state, making it intentional
fraud.
SENATOR HALFORD said section 11 adds "or misleading" to the
existing statutory language without a definition of "or
misleading." Because this is subjective language, it should either
be defined or left out. SENATOR HALFORD would also like to know if
a crime is created if something has been encrypted, without
authorization, in a computer system a person has access to.
MS. CARPENETI stated this will only apply if a person is encrypting
data they have no authorization to encrypt. It has to be proven
that a person has no right to do so or have any reason to believe
they have the right to get access to this information and encrypt
or decrypt the information.
Number 2102
SENATOR TORGERSON asked if a person can be tried with this law if
they enhance information for personal gain.
MS. CARPENETI answered that in order for it to be covered under
CSSB 259, a person would have to go into their bank account data
and enhance their record--actually going in and changing the bank
computer.
SENATOR HALFORD stated that the historical interpretation of a
social security number has been destroyed and if this is the core
number that created the problem for theft of identity, something
needs to be done to fix the problem.
SENATOR TORGERSON stated this is public information that is being
misused and he asked if there can be a misinterpretation without
there being a misuse.
CHAIRMAN TAYLOR stated he does not think a social security number
is public information.
There being not further business to come before the committee,
CHAIRMAN TAYLOR adjourned the meeting at 2:29 p.m.
| Document Name | Date/Time | Subjects |
|---|