HOUSE BILL NO. 125 An Act relating to unlawful and indecent viewing and photography and to civil damages and penalties for that viewing and photography. providing for an effective date. DENISE HENDERSON, STAFF, REPRESENTATIVE PETE KOTT, stated that HB 125 would amend Alaska Statute 09.68 by adding a section that creates protection for victims of improper viewing and/or photography. The bill establishes the parameters for what is considered to be improper viewing or photography. Ms. Henderson added that the bill would prohibit the transmission of pictures or video images over the Internet without the consent of the subject or the parents, if the subject was a minor. The bill would also prohibit any monetary gain to be had by the perpetrators of crimes as well as imposing stiff monetary fines. Ms. Henderson summarized that HB 125 would ban a practice known simply as "up-skirting or down-blousing". The Internet has made the practice more common with web sites posting images and buying pictures from high tech peeping toms and telling users where to buy hidden cameras. Those web sites basically promote the practice as well as encourage it. The bill is designed to protect the privacy of all the residents in the State of Alaska. Vice-Chair Bunde asked if the legislation resulted from an extension of an existing problem in the Mat-Su Valley. Ms. Henderson acknowledged that it had. There were no previous civil statutes which allowed people to file for civil liabilities in these cases. Representative Davies referenced Page 2, Line 5, and asked what "viewed and photographed" meant. Ms. Henderson explained that a problem exists with using photographs and then posting them on the Internet. Representative Davies asked if the fine would be $5,000 per day for each day the photograph was up. Ms. Henderson replied that was correct. Representative Davies reiterated concerns with language on Page 2, Line 5. He requested more information regarding the class of penalty it would be. JERRY LUCKHAUPT, LEGISLATIVE LEGAL, LEGISLATIVE AFFAIRS AGENCY, explained that the language refers to a part of a civil penalty. It stipulates that each day that a person is viewed and photographed, there would be a separate $5,000 penalty. Earlier in that provision, the language provides for a $100 dollar accounting for each photograph made. There are different alternatives provided and the legislation provides for a separate scheme for each day that the viewing takes place. A Class A misdemeanor provides for a $5,000 fine. In Section 2, a new crime, improper viewing, is made which would be a Class A misdemeanor. The maximum penalty for that would be one year in jail and a $5,000 dollar fine. Representative Davies pointed out that the fine would be assessed each day that the person was viewed or photographed improperly. He asked what the phrase "photograph was viewed" would encompass. Mr. Luckhaupt explained that language was drafted in order to provide the concept of the fine for the viewing or photographing. Representative Davies reiterated his concern with the Class A misdemeanor and the associated penalty. He suggested that a cap be placed on the amount. A Class C felony typically has a $50,000 dollar fine which he thought was too much. Representative Davies MOVED to ADOPT an amendment to Page 2, Lines 4 & 5, including an "up to" amount perhaps in the neighborhood of $15,000 dollars. Co-Chair Williams OBJECTED for discussion. Representative Whitaker asked why the penalty should be reduced. Representative Davies WITHDREW his MOTION. Representative Croft commented on language indicated on Page 2, Lines 8-12, regarding the concealed camera. He stated that under the bill, it would be a crime for knowingly and "surreptitiously" viewing inside a house. Mr. Luckhaupt stated that that the surreptitiously viewing would be a viewing that is unnatural and suspicious. Discussion followed on the meaning of "surreptitiously". Mr. Luckhaupt noted that the dictionary definition of surreptitious viewing would be something like hiding from behind a bush peering through the blinds. Representative Croft questioned if the person in the interior of the house would determine if it was surreptitious or not. Vice-Chair Bunde referenced language on Page 2, Lines 3-4, and asked about the civil penalty. He questioned if the case could be taken on contingency. Mr. Luckhaupt advised that the penalty was provided under the civil scheme in the first section of the bill. The first penalty would be the person's actual damages, Page 1, Line 10; there would be a penalty placed on the person for every picture they produced from the illegal viewing and there would be a penalty placed on them for $5,000 for each day that they do the action. He stressed that the penalty was designed in order to encourage people not to partake in the conduct. Vice-Chair Bunde noted that the upper limit of the fine would be determined in Court. Mr. Luckhaupt stated that the victim of the offense, the plaintiff, would have to prove how many days that person had been illegally viewed or photographed. Vice-Chair Bunde asked if the fine would be mandatory. Mr. Luckhaupt advised that it would not be a typical criminal situation. The Court would impose the fine and penalties. He emphasized that it is important to provide some incentive that the person not engage in the illegal videotaping. Representative Davies commented that most people do not know the law even though they have a general moral sense that the behavior is improper. He argued that ending up with a $3 million dollar fine could create a very bad situation. He urged that a limit be placed on the crime. He emphasized that the legislation provides for no limit. Co-Chair Williams questioned the limit for civil actions. Mr. Luck advised that there is not a limit. In such a case, other provisions and damages suffered by the person could be unlimited. Ms. Henderson noted that the discussion was being focused on the monetary amount indicated in the bill. She insisted that there is no monetary cap which can be placed on a person's privacy. Representative Davies agreed, however, pointed out that there is no way to determine the value of "privacy"; the way that is usually used to determine it is by setting a class of penalty. He stated that the question is: "Does this crime equal ten felonies?" He stressed that there must be some kind of rational used in determining the penalty scheme. Vice-Chair Bunde asked if the sponsor would consider compromise in that language. Representative Lancaster agreed that a person could not put a value on their privacy. He believed that society needs a message that the fine would be unlimited. Representative Davies argued that there should be a rational between the penalty scale and the level of the crime. Ms. Henderson stated that the sponsor would consider amending the language. Vice-Chair Bunde MOVED a conceptual amendment to Page 2, Line 4, inserting "up to" before "$5,000 a day". Representative Lancaster OBJECTED. A roll call vote was taken on the motion. IN FAVOR: Davies, Harris, Hudson, Moses, Whitaker, Bunde OPPOSED: Foster, Lancaster Representative Mulder and Representative Croft were not present for the vote. The MOTION PASSED (7-2). Representative Whitaker questioned who could be found liable under the language in the bill. Mr. Luckhaupt replied that Section 1 of the bill provides for civil penalties; Section 2 of the bill provides for the criminal penalty for improper viewing of photography and Section 3 of the bill amends the current law for indecent viewing of photography. Section 3 is the portion of the bill addressing the viewing of private exposure of the genitals, anus or female breasts of another person. Representative Whitaker questioned how much the legislation addressed the person viewing the photographs on the Internet. Mr. Luckhaupt explained that the person that does the viewing, would not be the person prosecuted. Representative Whitaker inquired the place in the legislation, which precludes a person sitting in his or her own home and viewing. Mr. Luckhaupt referenced language in Sections 2 & 3, Page 2, Line 7. Representative Whitaker voiced concern that in that language, the person would be held liable for improperly viewing if that person was knowingly viewing. He asked if "surreptitiously" was the key word. Mr. Luck advised that when you are sitting in your own home, you are not viewing a person in his or her own home. Someone that is viewing the person in his or her own home, is the person committing the offense. Representative Whitaker asked if the person viewing a web cam in the privacy of his or her own home would be precluded. They would be a third party to the production of that site. Mr. Luckhaupt replied that a web cam was a closed circuit. Representative Whitaker stated that he wanted to guarantee that a person watching the web would not be subject to prosecution. Mr. Luckhaupt noted that he did not perceive that person would be guilty of viewing. Representative Whitaker asked if a person living in Anchorage and viewing a picture produced in Southeast would be subject to prosecution. Mr. Luckhaupt reiterated that he did not believe that they would be subject to prosecution. Representative Whitaker agreed that it is important to establish the definition of "surreptitiously" viewed. Mr. Luckhaupt suggested that the Committee could draft a Letter of Intent clarifying the meaning of that section and that viewing secondary exposure of photographs or videotape would not be subject to prosecution. Representative Hudson asked what portion of the bill would preclude someone viewing through the Internet, be held harmless. He understood that the intent of the bill was to address "peeping toms". Co-Chair Williams stated that HB 125 would be HELD in Committee for further consideration. TAPE HFC 01 - 97, Side B