HOUSE BILL NO. 127 "An Act relating to the crimes of stalking, online enticement of a minor, unlawful exploitation of a minor, endangering the welfare of a child, sending an explicit image of a minor, harassment, distribution of indecent material to minors, and misconduct involving confidential information; relating to probation; and providing for an effective date." 1:42:21 PM Co-Chair Stoltze noted that his intent was not to report the crime bills [HB 127 and HB 175] out that day, but to begin an in-depth discussion about them. JOHN J. BURNS, ATTORNEY GENERAL, DEPARTMENT OF LAW, testified in favor of both HB 127 and HB 175. He noted that HB 175 was a housekeeping bill that would clarify and correct statutory revisions made the prior year. Attorney General Burns informed the committee that the focus of HB 127 (as proposed by the governor) was to expand the crimes of stalking and misconduct involving the acquisition and misuse of confidential information; it would expand the scope of crimes associated with online enticement and exploitation of minors. He asserted that the state was firmly focused on ending the epidemic of sexual assault and domestic violence that had been plaguing Alaskan communities. He reviewed statistics: · The incidence of sexual abuse among Alaskan children was six times the national average. · Alaskan women were raped two-and-one-half times more often than the national average. · 60 percent of Alaskan women had been physically or sexually assaulted or seriously threatened with assault. Attorney General Burns explained that HB 127 had been built on legislation implemented the prior year, and proposed important changes that would further protect victims from exploitation and assault. In addition to amending and clarifying aspects of existing statutes, HB 127 would expand the crime of stalking by amending the definition of "non-consensual contact" and make it a crime to use a global positioning system (GPS) device to follow or monitor a victim, or to install or attempt to install devices to observe, record, or photograph events occurring in the home, workplace, or vehicle of a victim, or on a victim's personal telephone or computer. 1:45:53 PM Attorney General Burns continued that the amended definition reflected the reality of current technology and the illicit uses to which it was being applied. House Bill 127 would also make it a crime to distribute an explicit image of a minor and to knowingly obtain or misuse confidential information about another person without legal authority or consent. Finally, in addition to various amendments and sentencing reclassifications, HB 127 would improve upon law enacted the prior year to allow the attorney general (or the attorney general's designee) to issue administrative subpoenas to law enforcement officials to obtain limited information from an internet services provider (ISP) if there was probable cause to believe that an internet service account was being used in connection with the crimes of the online enticement of a minor, unlawful exploitation of a minor, or the distribution or possession of child pornography. Attorney General Burns concluded that the objective of HB 127 was consistent with efforts to eradicate sexual assault and domestic violence in Alaska. He urged support of the legislation. Representative Guttenberg queried the administrative subpoena for an internet service provider. He asked how providers from outside Alaska would be dealt with. Attorney General Burns replied that the intent of the proposal was to allow the service of an administrative subpoena either as currently lawfully provided or as acceptable to the internet service provider, in order to facilitate the process of service. Currently, the law related to an administrative subpoena provided for signature only by the attorney general, and the service had to be either through certified mail or by process server. House Bill 127 would facilitate the service of administrative subpoenas through other, additional means. Representative Guttenberg summarized that the subpoena would only be serviceable by mutual consent. Attorney General Burns replied that the subpoena would be allowed as authorized by law or through mutual consent. 1:48:35 PM Representative Wilson questioned the fiscal notes, which she pointed out were indeterminate or zero. She wondered whether there were statistics about who would fall under the categories. ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES SECTION, CRIMINAL DIVISION, DEPARTMENT OF LAW, replied that she assumed the question related to the expansion of the definition of non-consensual contact, or stalking. She stated that there were no statistics, because the activities were not currently against the law. She added that there was information from other jurisdictions that the described acts had been done by stalkers. She pointed out that to convict someone of stalking, it had to be proven beyond a reasonable doubt that the accused person committed the acts of non-consensual contact with the intent to terrorize the victim or to put the victim in fear of death or physical injury. The legislation contained a definition of non-consensual contact and what that would include. Representative Wilson asked whether there were statistics from other states with the laws already in place. Ms. Carpeneti responded that she was not familiar with the statistics, but offered to look for more information. Representative Wilson acknowledged that there was a need for the definition. She thought zero and indeterminate fiscal notes made it hard to calculate the financial impact. Ms. Carpeneti responded that the state did not anticipate a large number of cases, but wanted the statute to be changed so that there would be provisions to address the situation if it came up. Representative Costello believed that the bill would prohibit graphic texting, regardless of whether a minor initiated the action or forwarded something. Attorney General Burns responded that she was correct. Representative Costello noted that the bill would clarify that a child under the age of 16 years of age could not be left alone with a person who had to register as a child kidnapper. She asked whether the law already addressed those who had to register as sex offenders. 1:52:24 PM Ms. Carpeneti responded that the item was considered a housekeeping amendment; the statute prohibited a parent from leaving a child under 16 years of age with a person who was required to register as a sex offender; for some reason, it did not include people who had to register as child kidnappers. Representative Doogan queried how harassment would be applied by the bill. Ms. Carpeneti answered that the amendment to the harassment statute in HB 127 was only conforming, to make it clear that the "sexting" provision (created in another section) was not duplicative in the harassment section. Co-Chair Stoltze queried the word "sexting." Ms. Carpeneti replied that the word was not in the bill, but was in common usage. Representative Doogan asked how the issue of misconduct involving confidential information would be applied in the bill. Ms. Carpeneti responded that the item would be a new crime. Representative Doogan queried the issue of probation. Ms. Carpeneti answered that current statute required that the Department of Corrections (DOC) provided qualified probation officers to the superior court. She added that superior court meant felony crimes. Historically, Alaska had never had probation officers for supervised probation for misdemeanants, primarily because it would be enormously expensive. However, there had been an experimental program tried by a group of people in the criminal justice system (the PACE [Probationer Accountability with Certain Enforcement] program); a discreet group of misdemeanor defendants were stringently supervised during probation to ascertain what difference could be made. House Bill 127 would clarify that courts would not be able to appoint probation officers to every misdemeanant, unless the commissioner of DOC agreed. Representative Gara expressed concerns about the administrative subpoena. He pointed out that historically, a subpoena could only be issued by a court; the prior year, legislative authority had been given to allow the attorney general to issue some subpoenas. He asked what form would have to be used so that the defendant knew they got the subpoena and had the time to challenge its validity. Ms. Carpeneti replied that at the current time, there would not be a defendant to notify. She referred to testimony by Sgt. DeGraff the prior year related to investigations based on probable cause that a particular internet account was being used to perpetrate child pornography crimes or online enticement of a minor. The bill would allow law enforcement to obtain information about the account from an internet service provider; the administrative subpoenas would only go to internet service providers, so there would not be a defendant at that point. 1:57:37 PM Representative Gara summarized that the person gone after would not know. Ms. Carpeneti responded that he was correct. She added that there would be limited information about an identity; at a certain point, the defendant would have the right to get the information, if there were criminal charges. Representative Gara asked why the state could not simply rely on the courts to determine whether a subpoena was valid. Ms. Carpeneti replied that crimes involving computer and internet use and involving child and pornography moved swiftly; the information had to be obtained as quickly as possible in order to isolate the computer being used. The alternative was to go to the judge and get a search warrant, but for a quicker investigation with limited information. She noted the provision was the same as the one passed the previous legislative session to find out where the computer was. Co-Chair Stoltze observed that the stakes were high for the children involved. Vice-chair Fairclough asked whether the bill could be applied to the activities of the Transportation Security Agency (TSA). She referred to concerns that the images taken in airports could be used as inappropriate material. She believed pat-down procedures were being conducted at an unnecessary rate and raised questions about inappropriate touching. She wanted to fight for Alaskans' rights to privacy. Mr. Burns responded that issues relative to the TSA were being evaluated. 2:02:14 PM Representative Edgmon thanked the governor for his emphasis on the issue represented in HB 127. He referred to the bill heard earlier during the session related to synthetic marijuana. He wondered about rural Alaska and getting ahead of the technology curve with the legislation. Mr. Burns responded that the department was trying to keep up with the technology; he thought the present use of the internet for the described uses was "appalling." He stated that HB 127 intended to achieve the ability for law enforcement to intercept through the administrative subpoena process; it would not take the place of a warrant, but would allow law enforcement to hone in on the activity. Representative Edgmon remarked that GPS units were used throughout the state. He wondered whether the GPS device would have state application. Mr. Burns responded in the affirmative. Ms. Carpeneti commented that the additions to the definition of non-consensual contact were part of the stalking statute, which provided that a person committed the crime if they recklessly placed another person in fear of death or physical injury by engaging in a course of conduct that reasonably frightened them. The proposed new ways of contacting a person would be in addition to those already stipulated in statute. Vice-chair Fairclough remarked that victims of rape, incest, or child abuse felt the same as those who were patted down by the agents of the TSA. She expressed frustration. Representative Guttenberg asked how an individual ISP could be focused on in public places that had many computers, such as internet cafes. He described experience with wireless routers. He wondered whether there was something in the bill that would help focus on a perpetrator. 2:08:12 PM Co-Chair Stoltze pointed out that there would be more details when the American Civil Liberties Union (ACLU) took the state to court. Representative Gara pointed to a provision on page 3, line 24 and wondered whether an amendment would be needed. He noted that the provision related to "sexting" was aimed at preventing abuse of people under 16 years of age, and that certain body parts (which he would not read into the record as they sounded bad) applied. However, the bill did not say that the body parts had to be uncovered. He queried the intent. Ms. Carpeneti replied that the terms were used in many places in Title 11; the intent related to unclothed body parts. Representative Gara asked whether it was written anywhere in the statutes that the body parts had to be unclothed in order to prosecute someone. He asked whether the word "genitals" was defined in relation with being uncovered. Ms. Carpeneti answered that the issue had never come up; she assumed the meaning was unclothed. Representative Gara expressed discomfort with the language; he wanted more than intent. He did not want a person to be prosecuted for texting clothed body parts. He was not convinced that the language in the bill was clear enough and questioned the need for an amendment. 2:11:40 PM Ms. Carpeneti responded that the item was defined as an explicit image. She thought a court decision addressing the issue could be found. She added that the intent was not to prohibit sending pictures of clothed people. Vice-chair Fairclough opined that people could be clothed and the image could still be explicit. She thought the current language had been sufficient in the past. She pointed out that people could dress children up in sexually provocative ways before creating inappropriately explicit images. Vice-chair Fairclough believed Representative Gara's intent had been put into the record. She thought it was right to point out there could still be a violation with the presence of clothing. Representative Doogan believed the bill would do two things: raise the classification in three cases from Class B to Class C felonies, and insert a few new crimes that were Class B felonies. He asked why the penalties needed to be increased in the first cases. Ms. Carpeneti believed there had been a misunderstanding; the new crimes added were misdemeanors, not felonies. The bill would raise the crime of online enticement of a minor (currently a Class C felony for most first-time offenders and a Class B felony for sex offenders or child kidnappers) up one level. The rationale was that the crimes were very serious and caused enormous harm to children. Ms. Carpeneti continued that the crime of the unlawful exploitation of a minor (the creation of child pornography using children) would be raised to a Class B felony for all offenders; under current law, the crime was a Class B felony for the first offense and a Class A felony for a second conviction of the offense. The rationale for the increase was the seriousness of the conduct. 2:16:32 PM Representative Doogan pointed to Section 9 of the sectional analysis, which he thought communicated that the bill would create a new crime that was a Class B felony. Ms. Carpeneti replied that Section 9 would create misconduct involving confidential information in the first and second degree (Class A and Class B misdemeanors). Representative Doogan referred to the sections in which the felony level would be raised up and asked whether the levels had been set the previous session. Ms. Carpeneti replied that the particular crimes and levels had not been created recently. She added that unlawful exploitation of a minor was created when the criminal code was created in 1978 and had been enacted in 1980; online enticement of a minor was enacted in the early 2000s. HB 127 was HEARD and HELD in committee for further consideration. HOUSE BILL NO. 127 "An Act relating to the crimes of stalking, online enticement of a minor, unlawful exploitation of a minor, endangering the welfare of a child, sending an explicit image of a minor, harassment, distribution of indecent material to minors, and misconduct involving confidential information; relating to probation; and providing for an effective date." Representative Gara returned to discussion of HB 127. He questioned the intent of the bill regarding texting images of body parts. He wanted to know whether the intent was to refer to body parts that were only uncovered. Ms. Carpeneti stated that the intent of the legislation related to unclothed body parts; in sexual assault and sexual abuse situations, the terms generally meant unclothed. Representative Wilson wondered whether dressing a 12-year- old in lingerie would be allowable. She thought there were more issues that needed to be discussed. Ms. Carpeneti responded that the House Judiciary Committee had reviewed the bill and limited it because of concerns about the breadth of scope and constitutional issues. The proposed law was more limited than it had been originally. She asked whether the committee intended to broaden it. Representative Wilson thought that the intent needed to be clear if the state was going to be able to protect children. Ms. Carpeneti added that HB 127 had a fairly limited focus. She pointed out that there were other provisions (related to "unlawful exploitation of a minor") that would cover more serious conduct. The provisions prohibited putting children in certain positions and creating images of them. Representative Gara did not understand how a bill that would create new crimes that could result in people going to jail could have a zero Department of Corrections fiscal note.