HB 255-UNMANNED AIRCRAFT SYSTEMS  CHAIR KELLER announced that the first order of business is HB 255. "An Act relating to unmanned aircraft systems; and relating to images captured by an unmanned aircraft system." [Before the committee is CSHB 255(STA).]   1:12:26 PM REPRESENTATIVE LYNN moved to adopt proposed CSHB 255 Version 28- LS1068\P, Strasbaugh, 3/4/14 as the working document. 1:12:55 PM REPRESENTATIVE GRUENBERG objected. 1:12:59 PM REPRESENTATIVE SHELLEY HUGHES, Alaska State Legislature, on of the joint prime sponsors, stated there are two concerns addressed [in Version P] The first concern was expressed by the statewide archivist regarding how images no longer required would be handled. The second concern addressed in Version P is regarding unmanned aircraft used in search and rescue, but not necessarily involved in criminal activities. This change respects the importance of privacy and abides by the Alaska State Constitution and U.S. Constitution, she offered. 1:14:08 PM GINGER BLAISDELL, Staff, Representative Shelley Hughes, Alaska State Legislature, speaking on behalf of Representative Hughes, one of the joint prime sponsors, stated that [Version O] page 2, lines 26-27, originally read "A law enforcement agency may use an unmanned aircraft system to gather evidence in a criminal investigation." The sponsors' intent in [Version P] is in the event a search and rescue event turns into a criminal investigation that it be admissible in court. The language on page 3, lines 2-5, is regarding a law enforcement agency using information gathered by an unmanned aircraft system while enforcing personal privacy. She explained the main intent of the Unmanned Aircraft Systems Legislative Task Force ("Task Force") is to guard personal privacy and allow law enforcement agencies to use unmanned aircraft systems as a tool. Version P also addresses the concern of the statewide archivist [Dean Dawson] regarding existing state law and the requirement to retain images. For law enforcement purposes, Version P specifically identifies that images may not be retained without a law enforcement purpose to keep them. There are a number of existing laws regarding law enforcement's custody of retained images that explain the retention length and how the images are to be retained. House Bill 255 instructs law enforcement to dispose of images when performing training runs or a completed search and rescue event. 1:16:37 PM REPRESENTATIVE PRUITT assumed law enforcement would require only the [images] relevant to its investigation. He questioned the specific amount of time images not relevant to its investigation remain in law enforcement's custody. MS.BLAISDELL deferred to Anne Carpeneti, Assistant Attorney General, as she is familiar with various scenarios, lengths of time, and the type of data required to be retained. 1:18:01 PM REPRESENTATIVE GRUENBERG directed attention to the language [in Version P] on page 2, line 28, "to gather evidence in a criminal investigation" and contrast it with the language on page 3, lines 2-3, which read, "... for uses not involving a criminal investigation and not intended to lead to the production of evidence for use in a criminal investigation, ..." He pointed out that technically there may be a loop hole and suggested the language might also include on page 2, line 28, the phrase "to gather evidence in a criminal investigation or intended to lead to the production of evidence for use in a criminal investigation" since [proposed A.S. 18.65.903(a)] (3) breaks it out. He suggested to both Ms. Blaisdell and Ms. Carpeneti that the language could potentially lead to a misinterpretation. MS. BLAISDELL responded that the change from [CASB 255(STA)] to "only able to be used for a criminal investigation," to the change in [Version P] is for law enforcement's use which allows it to be used for a general public purpose as well as a criminal investigation. The language in Version P, page 2, line 28, discusses the use of a warrant in a criminal investigation. The language on page 3, [lines 2-5], (2) discusses situations and uses not specifically involving a criminal investigation, such as search and rescue, Amber alert, bomb squad type of use, and a variety of issues, she explained. 1:21:26 PM REPRESENTATIVE HUGHES surmised that Representative Gruenberg was referring to a [search and rescue event] that turned criminal. REPRESENTATIVE GRUENBERG clarified that he is referring to the time before an event turned into an investigation. He advised it was a technical question. REPRESENTATIVE HUGHES pointed out that the language on [pages 2- 3], line 31 [and line 1, respectively], "[B]] in accordance with the judicially recognized exemption to the warrant requirement in AS 12:35; ..." would cover search and rescue events that become evidential for a criminal investigation. She reiterated that subparagraph (B) on [Page 2], line 31, would cover those situations and questioned if that was what Representative Gruenberg was referring to. REPRESENTATIVE GRUENBERG responded that her comments would normally be the case, but because the language is broken out in [page 3, lines 4-5] there is a situation that has not yet and never does ultimately turn into a criminal investigation. He reiterated that this is a technical question. REPRESENTATIVE HUGHES noted that the aforementioned language on page 3, line [3], read "not intended to lead to the production of evidence ..." However, she stated that was not the original intent, but it actually could lead to [evidence]. REPRESENTATIVE GRUENBERG responded that there could be a situation that falls between the cracks in which something was intended to lead to the production of evidence for use in a criminal investigation. He expressed the need to avoid an unintended loop hole. 1:24: 21 PM ANNE CARPENETI, Assistant Attorney General, Legal Services Section, Criminal Division, Department of Law (DOL), said the Department of Law is concerned that there is not a gap in law enforcement's ability to gather evidence in cases in which it is fair and not a violation of privacy. The desire was for law enforcement to be able to use images obtain from drones in a non-criminal investigation such as locating a lost individual on a search and rescue mission, when the situation turns out to be a crime scene. Law enforcement wants to be able to use those photographs in the prosecution of the defendant as and there is certainly no reasonable expectation of privacy in that situation. She related her understanding that is the reason paragraph (2) [on page 3, lines 2-5] was drafted. If there are any gaps, she expressed the need to address them. 1:26:07 PM REPRESENTATIVE GRUENBERG suggested that analytically the language may lead to situations that do not technically fall under one or the other scenarios. He further suggested the cure may be to add language on [page 2,] line 28, such that paragraph (1) would read "to gather evidence in a criminal investigation or intended to lead to the production of evidence for use in a criminal investigation." He explained it is similar to the broader discovery rules in civil cases wherein a party may ask for the production of evidence for use in the trial or evidence that could lead to the production of evidence in a criminal trial. This is a discovery situation and civil rules are specifically designed so there is no gap, he opined. MS. CARPENETI said although she thinks Representative Gruenberg's suggested language is unnecessary, she will conduct further research and can work with the sponsor. CHAIR KELLER advised subsequent to Ms. Carpeneti's review any technical change could be conducted on the House floor REPRESENTATIVE LYNN questioned whether the inclusion of Representative Gruenberg's language would cause any harm. MS. CARPENETI responded that she did not believe it would cause harm, but reiterated the language is unnecessary. REPRESENTATIVE HUGHES offered to work with Ms. Carpeneti and if the language is necessary it could be changed in the House Rules Standing Committee. The Task Force does not want anything slipping through the cracks, she opined. 1:29:54 PM MS. CARPENETI, responding to Representative Pruitt's earlier question, stated that the language in HB 255 has a reasonable expectation of privacy under circumstances in which footage is not used as it is not relevant to any criminal prosecution. 1:30:42 PM REPRESENTATIVE PRUITT related his intention is that the footage applies to the specific purpose for which the drone is intended at that time. Otherwise, he expressed concern about putting drones in the air to see if they capture images of anything [criminal]. MS. CARPENETI responded that the focus of the Task Force is to adopt rules that protect privacy while at the same time allow these instruments of the future usable for [law enforcement] when necessary. REPRESENTATIVE PRUITT remarked that the retention piece is part of the whole discussion in how long [law enforcement retains data] as his concern is the time frame each of those images are retained. 1:32:17 PM REPRESENTATIVE LYNN inquired as to the difference between a drone taking photographs from above and a security camera at street level. He further inquired as to how long images from a security camera on the street are retained. MS. CARPENETI replied that the difference is that someone walking down the street has less expectation of privacy than a person at a remote cabin where there are no roads and a higher expectation of privacy exists. Essentially, she said it depends upon the facts and what citizens expect when performing certain acts, as most people do not expect to be private while walking down a street. REPRESENTATIVE HUGHES related her understanding that images taken with a public security camera on state buildings are retained for 30-days. She advised that Alaska has high powered cameras that can be attached to an unmanned aircraft, a car and a person could carry it. The Task Force understands the potential privacy issues and is always considering the privacy aspect. Moreover, the Task Force realizes that the legislation should be somewhat neutral as far as the tool because the operator of the tool and the state must be certain the operator is doing the right thing, no matter to what the camera is attached. She explained that the Task Force's amendment is that if the images are not needed that they are considered confidential and not part of public record. She assumed the law enforcement agencies would dispose of them immediately. REPRESENTATIVE LYNN highlighted his overall concern that the focus is on [the unmanned aircraft system] while there are security cameras everywhere. He opined that he does not have an expectation of privacy much anymore. REPRESENTATIVE PRUITT, regarding Ms. Carpeneti's comments about the cabin scenario, said they apply in a residential situation also. If drones are flying over residential areas, a person in his/her back yard should have the same expectation of privacy as at a cabin. 1:36:50 PM REPRESENTATIVE GRUENBERG questioned, in reference to page 2, lines 29-30, whether a search warrant that is not issued pursuant to state law, but issued pursuant to a federal order should read "(A) under the express terms of a search warrant issued under court order," rather than "AS 12.35." MS. CARPENETI responded that Representative Gruenberg's suggestion was excellent and one with which she completely concurred. 1:37:51 PM REPRESENTATIVE GRUENBERG referred to the language on pages 2-3, lines 31 and l, respectively, "(B) in accordance with a judicially recognized exception to the warrant requirement in AS 12.35." [The warrant] may be judicially recognized, particularly if it is a federal warrant issued under an exception under federal law. He expressed concern that Alaska may have a judicially recognized exception that has never been ruled on, but would be judicially recognized elsewhere. For example, there could be a scenario wherein a smart lawyer alleging "this" is judicially recognized in Nebraska and 43 other states, but has not arisen in Alaska. Therefore, he suggested the language should not cite just the one statute [AS 12.35], but should say "recognized under law." MS. CARPENETI responded it would be best to leave it under state law as under federal search and seizure law there is a good faith exception to the warrant requirement and she did not know if Alaska's court had adopted it yet. The [use of an unmanned aircraft system by a law enforcement agency] would be best tied to judicially recognized exceptions under state law, she remarked. 1:41:00 PM REPRESENTATIVE GRUENBERG suggested a conceptual amendment in which on page 2, lines 29-30, the language "... AS 12.35" would be replace with the following language "... a valid court order." MS. CARPENETI responded that although it is difficult for her to imagine Alaska going to another court to obtain a court order to allow Alaska to perform drone surveillance, a court order is fine because it is more general. At the same time, she related the preference to limit the judicially recognized exceptions to state law exceptions. 1:42:43 PM REPRESENTATIVE GRUENBERG questioned Ms. Carpeneti as to whether she had any problem with the committee substitute. MS. CARPENETI responded no, noting that she has had been an excellent working relationship with the sponsor and her staff. 1:43:05 PM REPRESENTATIVE GRUENBERG removed his objection to adopting CSHB 255, Version P. There being no further objection, Version P was before the committee. CHAIR KELLER closed public testimony and stated CSHJR 33(JUD) Version P is before the committee for discussion. 1:44:04 PM REPRESENTATIVE GRUENBERG moved Conceptual Amendment 1, as follows: Page 2, line 30 Delete "AS 12.35" Insert "court order"  1:44:32 PM CHAIR KELLER objected and requested that the sponsor work with DOL in the event there is a problem with the language of Conceptual Amendment 1. Chair Keller then removed his objection. There being no further objection, Conceptual Amendment 1 was adopted. 1:45:07 PM REPRESENTATIVE LYNN move to report CSHB 255 (JUD), 28-LS1068\P, Strasbaugh, 3/4/14, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no further objection CSHB 255(JUD) was reported from the House Judiciary Standing Committee. 1:45:26 PM The committee took an at ease from 1:45 p.m. to 1:48 p.m.