SB 72-CRIMES INVOLVING MINORS/STALKING/INFO  1:34:01 PM CHAIR FRENCH announced the consideration of SB 72. He asked Ms. Carpeneti to continue the sectional analysis, starting with Section 8. ANNE CARPENETI, Assistant Attorney General, Criminal Division, Department of Law (DOL), said Section 8 is a conforming amendment to clarify that the sexting provisions in Section 7 aren't included in the crime of harassment in the second degree. 1:35:15 PM Section 9 makes two amendments to the crime of distribution of indecent material to minors. First, it clarifies the culpable mental state that the state must prove in order to convict a person of the offense. It provides that the person must know that the material he or she distributed depicts the prohibited conduct. Second, it clarifies that if the minor to whom the material is sent is under age 16, the person who sent the material was reckless as to that circumstance. SENATOR PASKVAN noted that the term "lewd" is included as an adjective in this section to specifically describe "touching" and "exhibition." He asked what the mental status is for "lewd." MS. CARPENETI replied it would be the circumstance of "reckless." The person would have to know that the material included the "lewd" touching of a person's genitals, anus, or female breast. SENATOR PASKVAN said he didn't understand what the term "lewd" means in that context. 1:37:55 PM MS. CARPENETI replied that's a question for a jury; it's not defined in the statutes. SENATOR WIELECHOWSKI asked if the bill applies to cartoon characters. MS. CARPENETI answered no. 1:38:19 PM CHAIR FRENCH noted a letter dated today from the American Civil Liberties Union (ACLU) pointing out that there is a preliminary injunction, on First Amendment grounds, against this section. Mr. Mittman says that Section 9 of the bill would narrow AS 11.61.128(a) "to only criminalize the distribution of material 'harmful to minors' by an adult if the recipient is under 16 years old and the adult is reckless regarding the recipient's age… ." Mr. Mittman goes on to say that the bill is an improvement on the statute that was enjoined, but it would still violate both the First Amendment and the Commerce Clause of the U.S. Constitution. Senator French asked Ms. Carpeneti if DOL is in communication with Mr. Mittman on this topic. MS. CARPENETI replied they have been in communication with Michael Bamberger, an attorney who is working with the litigants in this case. She added that she had not been in communication with Mr. Mittman, but she had spoken to him. 1:39:42 PM CHAIR FRENCH said he wasn't inclined to ask the ACLU to write the statute, but they did win an injunction so there has to be some accommodation. MS. CARPENETI said both sides have filed motions for a summary judgment, but the court hasn't issued an opinion. CHAIR FRENCH asked how long the motions have been pending. MS. CARPENETI said she'd find out, but she believes they're fairly recent. SENATOR COGHILL asked if the amended language regarding "reckless disregard for the age of the child" would be a second line of proof. MS. CARPENETI answered it would require the state to prove that the child was under age 16 and the person distributing the material was reckless as to that fact. "Reckless" is defined in the statutes as knowing there is a high probability that the person would be under age 16 and knowingly disregarding that fact. SENATOR COGHILL said he was trying to figure out why "reckless regard" was used instead of "ignoring" or "disregard." 1:41:39 PM CHAIR FRENCH explained that it's easier to prove than "intentional." MS. CARPENETI said this is the crux of the lawsuit. The argument is that the state would have to prove that the person who is distributing the material knows that the person is under age 16. DOL uses the culpable mental state of "reckless disregard" because it's a lower standard. However, it still requires the state to prove that the person knew that there was a substantial risk that the person was under age 16 and knowingly disregarded that risk. SENATOR COGHILL surmised that this is because it's so easy for people to get false IDs. CHAIR FRENCH said he believes it's less than that; you seldom ask for identification from anyone you communicate with, but you have a general idea of their age. SENATOR WIELECHOWSKI asked why the court said this violated the First Amendment. MS. CARPENETI said she would follow up and provide that information. 1:43:48 PM MSL CARPENETI continued with the analysis. Section 10 adds two new crimes to the criminal code dealing with misconduct involving confidential information in the first and second degrees. This is not specific to children but it fits with the theme of using new technology to victimize people. She mentioned merchants that ask for a driver's license and then use the information, sometimes to commit a crime; and new technology that collects personal identification and credit card information from a person's satchel, backpack, or purse without opening it. MS. CARPENETI said that "confidential information" is defined as "information that is defined as confidential by law." Responding to questions, she agreed to provide a list of the things that would be considered confidential, and suggested the committee decide how broadly it wanted to define "confidential information." 1:45:49 PM SENATOR PASKVAN asked if there's a product on the market that would shield any personal information that's inside a wallet or purse. MS. CARPENETI said she's heard that some women put a lead liner in their purse, but she hasn't heard of anything else. SENATOR MCGUIRE noted that she worked on legislation several years ago that would inform consumers if RFID chips were used in things like a Carrs card, but the bill didn't advance because of wide-spread opposition. She asked if DOL had thought about the scenarios in which that information would be obtained and if the courts would be filled with prosecutions for this new crime. MS. CARPENETI replied she'd certainly look at the minutes from those hearings to make sure they'd thought through the different scenarios. 1:49:23 PM SENATOR WIELECHOWSKI asked if the bill could also classify as confidential things involving biometrics, the methods of identifying a person based on things like fingerprints or retinal scans. MS. CARPENETI said she would follow up, but the statutes do identify certain health records as confidential. Continuing with Section 10, she said the first degree provision, which is a class A misdemeanor, would be taking the confidential information and using it to commit a crime or to obtain a benefit. She noted that the statutes define "benefit" rather broadly. Section 11 clarifies that a person may be prosecuted for online enticement of a minor and for sending an explicit image of a minor if the minor was in Alaska, even if the defendant was in another jurisdiction at the time that he or she committed the prohibited conduct. 1:51:02 PM Section 12 amends AS 12.55.125(i), the sentencing statutes for sex crimes, by conforming the terms of imprisonment for persons who commit unlawful exploitation of a minor or online enticement of a minor to the correct level in accord with the changes in Sections 3-5 of the bill. SENATOR PASKVAN suggested drafting the law to make it illegal to be in possession of technology that is used for wrongdoing. CHAIR FRENCH said it's like possession of burglary tools. MS. CARPENETI said she'd have to think about it because it would have to be a specific intent crime. SENATOR PASKVAN opined that society should be most worried about the people who have access to equipment that can get personal information as they walk by you on the street. If they don't have a legitimate reason for possessing this equipment, the presumption would be that they're using it to steal information. SENATOR MCGUIRE suggested using the Oregon law that prohibits the possession of a radar detector as a model and including a rebuttable presumption for proving that there's a legitimate reason for possessing the equipment. 1:53:51 PM SENATOR WIELECHOWSKI asked how "unlawful exploitation" is defined on page 7, line 9. MS. CARPENETI replied it's the crime that's in AS ll.41.455, unlawful exploitation of a minor. Basically, it's the creation of child pornography. CHAIR FRENCH asked how often DOL prosecutes online enticement and unlawful exploitation of a minor. MS. CARPENETI replied there were 7 cases filed last year under the unlawful exploitation of a minor statute and 4 cases filed under the online enticement of a minor statute. CHAIR FRENCH said he has some concern with enhancing the penalties for crimes that are rarely prosecuted. MS. CARPENETI responded that these cases are very serious and shocking; Sergeant DeGraaf was prepared to testify in a House committee about some of the cases that have been prosecuted. 1:56:27 PM CHAIR FRENCH said he could not agree more that these are very serious crimes. MS. CARPENETI said it's DOL's position that the seriousness of these crimes is ample justification of the penalties. SENATOR COGHILL asked if these cases have other co-occurring charges, like kidnapping. MS. CARPENETI said most of the cases of child kidnapping also have sexual assaults and she suspects that it would be the same with these. She offered to follow up. SENATOR MCGUIRE mentioned the three strikes law and asked Senator French to clarify what he meant when he talked about increasing the penalties. CHAIR FRENCH said the section the committee was just discussing incorporates these crimes into the three strikes scheme. He then asked Ms. Carpeneti if under this bill a second offense for unlawful exploitation of a minor would be an unclassified felony, eligible for a 99 year sentence. 1:59:36 PM MS. CARPENETI replied that would need to be stated in the statute. CHAIR FRENCH summarized that the first offense would be an A felony, the second would be an A felony, and the third would be the third strike. MS. CARPENETI clarified that unlawful exploitation of a minor, which is the creation of this material, is already in the felony sentencing provisions, but online enticement of a minor was somehow left out of the three strikes provision. Under this bill it would be a class B felony for a person who is not required to register as a sex offender. CHAIR FRENCH commented that in Alaska transmission of child pornography is horrifically and shockingly prevalent. The resources that are being poured in and the level of activity would suggest more than four prosecutions a year. MS. CARPENETI said she hopes it will get better. CHAIR FRENCH asked if the expanded subpoena power would be included in this bill in the form of a committee substitute. MS. CARPENETI answered yes; she knows the committee would be interested in that. MS. CARPENETI said Section 13 deals with probation officers. It clarifies that while the commissioner of corrections provides probation officers to the superior court for the active supervision of a person on probation for felony offenses, it's not required. The commissioner may, at his or her discretion, also provide probation officers for the active supervision of persons released for misdemeanor offenses. Senator French opened public testimony. 2:04:08 PM TONY NEWMAN, Social Services Program Officer, Division of Juvenile Justice, Department of Health and Social Services (DHSS), said DJJ is concerned about the way communications technology and social media are outpacing the ability to understand how they impact young people. Several of the offenses that are the focus of SB 72 can be committed by unthinking and impulsive youths who think it's little more than a prank, but the consequences can be very long-term and damaging for victims. DJJ appreciates that the governor and the Department of Law are trying to get ahead of these issues before too many lives are ruined. Alaska has a juvenile justice system that recognizes that minors should be managed differently than adults. The DJJ mission is to hold youth accountable when they commit offenses, but at the same time to provide opportunities to keep them from continuing to make mistakes. The bill strikes a balance and allows DJJ to appropriately respond to the juvenile given his/her risk to reoffend and his/her needs. For example, the division could refer a youth to a diversion program such as a youth court without requiring them to go through formal court proceedings. The exception is the increase in the charge class level for unlawful exploitation of a minor. Class A felonies against a person are known in the juvenile system as auto-waiver offenses; youths age 16 and age 17 are referred directly to the adult criminal justice system. Unlawful exploitation of a minor is a serious offense, but DJJ believes that when a youth commits this crime it is counterproductive to automatically waive him into the adult system. DOL agrees and is working to craft an amendment to address this issue. 2:06:50 PM QUINLAN STEINER, Public Defender for the State of Alaska, Public Defender Agency, said his comments would center on two topics related to the unintended consequences in Section 7 of SB 72. The first is the breadth and nature of who it covers. Potentially couples who exchange photographs via email would be in violation of the statute. It would also cover a broader spectrum like grandparents who electronically send photos of grandchildren to their friends or post them on Facebook. That would be criminalized by this statute. He suggested narrowing the language to target the intended situation, which is the distribution where the broader distribution would be embarrassing. He also suggested the bill provide an exclusion for people who are taking and involved in the pictures. MR. STEINER said the other concern relates to the C felony penalty for publishing or distributing the depiction on the Internet. The bill refers to the broad definition of "Internet," which refers to its physical nature and how things are transferred. It would in fact become a felony to take a photo and email it to one person unless a printed photo was used for the publishing and distribution. He said he believes what was intended was posting on the Internet for public viewing rather than simple distribution. He described this as a technical problem. CHAIR FRENCH said the committee is focused on getting at this without including too much. 2:10:33 PM CHAIR FRENCH announced he would hold SB 72 in committee.