ASSEMBLY COMMITTEE ON JUDICIARY

MINUTES OF THE meeting

of the

ASSEMBLY Committee on Judiciary

Seventy-First Session

May 17, 2001

The Committee on Judiciarywas called to order at 8:15 a.m. on Thursday, May 17, 2001. Vice Chairman Mark Manendo presided in Room 3138 of the Legislative Building, Carson City, Nevada and by videoconference to Room 4401 of the Grant Sawyer Office Building, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Mr. Bernie Anderson, Chairman

Mr. Mark Manendo, Vice Chairman

Mrs. Sharron Angle

Mr. Greg Brower

Ms. Barbara Buckley

Mr. John Carpenter

Mr. Jerry Claborn

Mr. Tom Collins

Mr. Don Gustavson

Mrs. Ellen Koivisto

Ms. Kathy McClain

Mr. Dennis Nolan

Mr. John Oceguera

Ms. Genie Ohrenschall

STAFF MEMBERS PRESENT:

Nicolas Anthony, Committee Policy Analyst

Risa B. Lang, Committee Counsel

Cindy Clampitt, Committee Secretary

OTHERS PRESENT:

Gemma Greene Waldron, Deputy District Attorney, Washoe County and representing the Nevada District Attorneys’ Association

Ben Graham, District Attorneys’ Association

Kevin Higgins, Chief Deputy Attorney General, Office of the Attorney General

Captain Don Means, Washoe County Sheriff’s Office, Crime Laboratory

Nile Carson, Deputy Chief of Police (retired), representing the Reno Police Department

Detective Adam Wygnanski, Regional Sex Offender Unit, Reno Police Department

Emily Hackett, State Policy Director, representing Internet Alliance (IA)

Ron Teixeira, Manager, Global Law Enforcement and Security Affairs for the IA

Jim Endres, representing AT&T and its business services for the Internet

Steve Tackes, representing other competitive telephone companies who operated Internet service provisions

Bob Gastonguay, Executive Director, Nevada State Telecommunications Association

Robert Crowell, representing the Clark County Library

Dr. Richard Siegel, President, American Civil Liberties Union of Nevada

Clark “Danny” Lee, Legislative Consultant, Nevada Library Association

James Jackson, representing the Nevada Attorneys for Criminal Justice

Vice Chairman Manendo called the meeting to order at 8:15 a.m. and noted a quorum was present. He opened the hearing on S.B. 546.

Senate Bill 546: Revises penalties for abuse or neglect of child. (BDR 15-471)

Ms. Gemma Greene Waldron, Deputy District Attorney, Washoe County and representing the Nevada District Attorneys’ Association, presented the bill. Under existing law, child abuse was a gross misdemeanor unless it involved substantial bodily harm. In a case that included substantial bodily harm, child abuse was a felony punishable by 2 to 20 years in prison.

S.B. 546 would revise the penalties to state that if a child was less than 14 years of age and substantial mental or bodily harm occurred, the perpetrator would be guilty of a Category A felony punishable by life in prison with a minimum of 15 years served. In all other cases where the child was 15 years of age or older, it would be a Category B felony with a penalty of 2 to 20 years in prison.

If substantial mental or bodily harm did not result, and the person had not been convicted of a previous child abuse, the crime would be punishable as a Category B felony with a penalty of 1 to 6 years in a Nevada prison. If the person had been previously convicted of child abuse and substantial bodily harm did not result to the child, the punishment would be 2 to 15 years.

Ms. Waldron stated she prosecuted child abuse cases for Washoe County, and she believed the bill reflected just how serious the problems were and how much child abuse was happening in more severe forms. When a child was less than 14 years old and lewdness or sexual assault occurred, the penalty was always set higher than if the child was older. The bill would bring child abuse in line with other crimes against children that were Category A felonies. She noted those included sexual assault, lewdness, and pornography involving children. She stressed the penalties were always more severe when the child was younger. Ms. Waldron explained cases against younger and younger children were increasing, and the severity of injury was also increasing. She urged support for the bill.

Assemblyman Carpenter referred to page 2, lines 31 through 35 of the bill that indicated if a person who committed a crime had not been previously convicted of a child abuse crime, the crime remained punishable as a gross misdemeanor. Mr. Carpenter stated all child abuse crimes should be punished as a higher penalty at least to a low felony category. Ms. Waldron replied that page 1, Section 1, of S.B. 546 through page 2, line 10, spoke to the actual abuser of a child. Starting at line 30 on page 2, the bill spoke to a neglectful person who had care and custody of a child and allowed the child, through neglect, to suffer unjustifiable pain and/or suffering with no substantial mental or bodily harm; that person would be guilty of a gross misdemeanor if they had not been previously convicted of child abuse.

Ms. Waldron noted traditionally a person who was an actual abuser was treated more severely under the law than a person who was a caregiver and allowed something to happen to a child through neglect.

Mr. Carpenter asked for clarification that the entire bill applied to crimes such as sexual abuse. Ms. Waldron stated S.B. 546 encompassed more than sexual abuse. It also included actual physical abuse of a child. Sexual abuse would fall under either charges of lewdness or sexual assault of a child. She stated physical abuse included punching, kicking, and breaking an arm or a leg. Mr. Carpenter opined all such crimes should be dealt with more severely. Ms. Waldron stated that would be a policy choice of the committee, and she would not oppose a change.

Assemblyman Brower requested an example of the type of offense that would fall into a misdemeanor category under the bill. Ms. Waldron stated it was currently a gross misdemeanor if there was physical abuse of a child not resulting in substantial bodily harm. Substantial bodily harm was defined as prolonged physical pain or suffering involving breaking of a bone, requirements of surgical repair, something that would leave a permanent scar, or burn cases. Mr. Brower stated if a child was fortunate enough not to suffer any permanent injury, the case could result in a misdemeanor rather than a felony. Ms. Waldron replied such cases would result in a gross misdemeanor. Ms. Waldron related one case she had prosecuted where the mother of a little baby had placed the baby in scalding water in the bathtub, and his feet were burned. By the time the case was ready to go to trial, a doctor examined the child again and, because of the healing properties of the child, the case was reduced to a gross misdemeanor.

Assemblywoman Angle asked whether S.B. 546 increased certain crimes to a gross misdemeanor from a misdemeanor. Ms. Waldron stated the crimes of neglect or abuse were currently gross misdemeanors if there was no substantial bodily or mental harm. The bill would provide more categories of felonies with a distinction between children 14 years old and younger and those 14 years old and older. The bill moved the abuse of the younger children into a Category A felony. The bill also recognized that people who committed such crimes more than one time should be charged with a felony. She related one case where the same man was brought on charges in four different cases involving five different children. Child Protective Services (CPS) kept taking his children away, and his wife kept giving birth to more. All of the cases had resulted in gross misdemeanors because the children had not suffered substantial bodily harm.

Mrs. Angle asked what constituted neglect. She related she had constituents who had called her and stated their children had been taken away because their house was dirty. She asked if that was considered a gross misdemeanor. She asked if that incident happened twice would it be considered a felony under the bill. She expressed her appreciation of the upper thresholds, but asked what a lower threshold would be. Ms. Waldron replied there were various forms of neglect. She stated in Washoe County she required pictures, and, if the charge was a dirty house, she wanted to know how dirty the house was. In Washoe County there was an ordinance of misdemeanor for child abuse or contributory neglect. If the case did not rise to a certain level, the case would be filed as a misdemeanor to get the person into the system and provide certain services to the family. Severe neglect cases involved conditions such as exposure of little toddlers to animal feces or no food in the refrigerator or cabinets. Those cases were a gross misdemeanor. If the child was harmed because of neglect in a substantial way, the case would go to a felony. She stated complaints filed for a “dirty house” did not include things such as not dusting for a week.

Mrs. Angle asked if S.B. 546 specified the level of the degrees or if it was a judgment call on the part of CPS. Ms. Waldron referred to page 2, line 42, of the bill that provided a definition of abuse or neglect. It was defined as, “physical or mental injury of a nonaccidental nature, sexual abuse, sexual exploitation, negligent treatment, or maltreatment of a child under the age of 18 years, and under circumstances, which indicated that the child’s health or welfare was harmed or threatened with harm.” The degrees were not set forth, so, as a prosecutor, she wanted to see pictures or a graphic, detailed written police report before she filed a case. She stated officers were trained on what to look for in a home or situation if neglect or abuse was suspected.

Mr. Ben Graham, District Attorneys’ Association, noted many of the people in the room had watched the development of criminal law since the changing of the sentencing structure in 1995. It was an area where prosecutors in Special Victims’ Units had urged certain increases and adjustments to the penalties.

Gross misdemeanors were discussed at some length because it was felt that a person who was almost a victim himself should not be punished as severely as person who perpetrated a criminal act.

Mr. Graham referred to Mrs. Angle’s questions and stated on page 3, of S.B. 546 it listed certain criteria that had to be met for criminal prosecution. The standard in neglect cases consisted of proof beyond a reasonable doubt, and Family and Youth Service agencies intervened and tried to help children in those situations that never reached a criminal prosecution. Mr. Graham urged support of the bill.

Chairman Anderson asked why the issue had never been brought before the Sentencing Commission. Mr. Graham replied he did not know the total answer. He was aware that the Sentencing Commission at the time was reviewing certain areas, but the issue brought forth in the bill was not a part of that consideration. The association had submitted a bill draft request through the Office of the Attorney General.

Chairman Anderson expressed concern with the fact that situations such as those addressed by the bill were the very reason the Sentencing Commission was created. The intent had been to have a common forum for such review. Mr. Graham stated he could not respond to that particular issue.

Chairman Anderson stated, as a teacher, he had noted many students considered school homework assignments to be physically painful and mentally taxing. He asked if the statute could be construed in some way to by some child to file a complaint about assigned tasks such as that or mowing the lawn or picking up after animals. What constituted mental suffering under the bill? Ms. Waldron replied on page 3, line 10, S.B. 546 defined substantial mental harm as, “an injury to the intellectual or psychological capacity or the emotional condition of a child as evidenced by an observable and substantial impairment of the ability of a child to function within its normal range of performance or behavior.” She added that as a practical matter, the district attorney’s office would have the child psychologically evaluated and the medical conclusion attested by a psychiatrist or psychologist. Mr. Graham stated he was not aware of any case law that interpreted what constituted mental harm. He offered to research the issue.

Vice Chair Manendo closed the hearing on S.B. 546 and noted the bill would be held. Vice Chair Manendo relinquished the Chair to Chairman Anderson.

Chairman Anderson opened the hearing on S.B. 48.

Senate Bill 48: Prohibits various acts related to Internet, networks, computers and electronic mail. (BDR 15-259)

Mr. Kevin Higgins, Office of the Attorney General, spoke from the audience noting no one had attended the Senate hearing to present the bill.

Mr. Higgins approached the witness table and stated the Committee to Encourage Business in Nevada proposed S.B. 48. He stated the bill as amended was concerned with denial-of-service attacks. Approximately one year previously a Canadian high school student shut down E-Bay and Ameritrade and others of the Internet-based organizations with denial of service attacks. He explained the student managed to get numerous computers across the country involved in the project. He explained so much e-mail had been sent to various companies, the companies had to shut down. He likened it to stuffing a mailbox so full, not another piece could be placed in it. If an entire business relied on serving customers through the Internet, such actions caused interruption of business and perhaps large financial harm.

Mr. Higgins opined the intent of the bill was to encourage new businesses that entered Nevada and reassure them that, if and when such an event occurred, a crime would already be defined in law. The bill spoke to response costs, and most crimes required a certain cost level before they rose to a felony crime. He stated if a company was forced to hire technical assistance to get their system back online, those costs would fall under that category.

Privacy issues that had been in the original bill had been deleted by amendment.

Chairman Anderson noted that Section 7 of S.B. 48 concerned unlawful acts involving electronic mail, specifically to prohibit a person from falsifying or forging data or information contained in electronic mail with the intent to transmit it. It also prohibited a person from transmitting electronic mail to any Internet or network site if the person knew or should know that the electronic mail was unlawfully generated or formatted. It prohibited a person from willfully, or without authorization, transmitting any electronic mail or other data with the intent and under circumstances that would impede or interrupt service.

Captain Don Means, Washoe County Sheriff’s Office, Crime Laboratory, stood in support of S.B. 48. The Chair noted the bill was an area of the law that Captain Means dealt with regularly. Captain Means stated electronic crime was an ever-expanding area as new crimes were committed every day.

Mr. Nile Carson, Deputy Chief of Police (retired), representing the Reno Police Department, stated the Reno Police Department expert was unable to attend the hearing but had testified in support of the bill in the Senate. He stated Internet crime was an emerging area. Law was needed to begin tracking such crimes and getting them to prosecution.

Chairman Anderson closed the hearing on S.B. 48.

ASSEMBLYWOMAN KOIVISTO MOVED TO DO PASS S.B. 48.

ASSEMBLYWOMAN OHRENSCHALL SECONDED THE MOTION.

Assemblywoman Buckley asked if any amendments had been submitted to the committee, and the Chair stated amendments had been submitted to another bill on a similar topic.

THE MOTION WAS PASSED UNANIMOUSLY BY THOSE PRESENT. ASSEMBLYMAN NOLAN WAS ABSENT FOR THE VOTE.

Chairman Anderson stated he would present the bill on the Floor of the Assembly. The Chair reopened discussion on S.B. 546.

Senate Bill 546: Revises penalties for abuse or neglect of child. (BDR 15-471)

Mr. Carpenter expressed his concern that, in the areas of neglect, the penalties should be higher. He suggested the penalty should be made at least a Category D or E felony. The Chair stated much legislation had been done in the area of child abuse and suggested the committee should perhaps move slowly on that particular issue to ensure prison times were not extended any greater than they already were.

The Chair stated the bill would continue to be held to provide further opportunity for study, and he opened the hearing on S.B. 551.

Senate Bill 551: Makes various changes concerning computers, technology, Internet and crimes against children. (BDR 15-442)

Mr. Higgins, Chief Deputy Attorney General, stated one of his areas of responsibility included the subject of high-tech crime and Internet fraud.

Mr. Higgins provided committee members with a packet of information regarding the bill (Exhibit C). It contained a copy of the bill, an outline of the provisions of the bill, and a set of amendments. Also provided for the committee was a separate brief amendment (Exhibit D). Mr. Higgins stated the amendments would focus on certain issues, and some of the issues were only beginning to be addressed in most states.

S.B. 485 of the Seventieth Session created a High-tech Crime Advisory Board. The Board had been charged with numerous responsibilities including establishment of cyber crime task forces. Those forces had been established, and information concerning them was contained in Exhibit C.

Mr. Higgins testified, when he spoke to civic groups, there were certain things he presented. One item was that Nevada ended up with all the telemarketers in the country because Florida, Texas, Arizona, and California passed legislation about ten years ahead of Nevada. Another example he cited was that Nevada had not had a bomb squad until Harvey’s Casino explosion approximately 15 years prior. Mr. Higgins was hopeful that, with some of the legislative bills proposed, Nevada could get “ahead of the curve” in the areas of high-tech crimes.

The Attorney General’s Office produced a brochure “Keeping your Child Safe on the Information Superhighway” that was included in Exhibit C. Chat rooms were one method pedophiles used to meet young people.

One of the High-Tech Crime Advisory Board missions was to address the provisions of the Electronic Communication Privacy Act (ECPA), and a matrix concerning the issue had been provided in Exhibit C. The ECPA federal legislation was based on the Title III Wiretap law that established how law enforcement could access electronic information. The portion of that law concerned with subscriber information was a part of S.B. 551, and it provided for subscriber identity and the contents of e-mails. The matrix stated some of the issues depended upon whether it was a private or public Internet service provider, whether the e-mail had been opened or unopened, and whether it was more or less than 180 days old. It changed whether a subpoena, a court order, a search warrant, or a higher-level court order had to be issued in order to obtain the information. In its provision covering subpoena authority, S.B. 551 only covered the areas of the matrix concerning basic and other subscriber information obtainable by a subpoena.

S.B. 551 also addressed the issue of cyber-stalking. A case had been prosecuted in Arizona where an ex-boyfriend was stalking an ex-girlfriend by placing pictures of her on the Internet. Those pictures had been “morphed” to look like her head with someone else’s body, and the text stated that her greatest desire was to have someone break into her house and assault her. He published her home address, her work address, and her home and work telephone numbers. Fortunately, she had not been attacked, but a number of people approached her and said they had seen her ad on the Internet and were answering it. The ex-boyfriend had not yelled at her or directly threatened her, but he was stalking her.

Mr. Higgins stated the biggest issue S.B. 551 dealt with was the luring of children and what was called “travelers.” Nevada did not have a misdemeanor kidnapping statute. He cited instances of children being convinced to leave their homes by someone they had met on the Internet. After crossing the state line to find their “Internet pal,” it was discovered the “pal,” was not a 15-year-old with similar interests, but a 45-year-old with specific interests and a likelihood of planned sexual assault. Currently in Nevada, unless the children who were lured out of their homes were sexually assaulted, there was nothing illegal about luring a child to leave home. The bill also addressed people called “travelers,” pedophiles who traveled to Nevada to “consummate “ a relationship.

Mr. Higgins commented that in earlier eras children had not been allowed to hang out in a public bathroom or go to a park without supervision because of the fear of them meeting pedophiles. In the present, those types of people were met on the Internet unwittingly, and children formed relationships with them and then were unfortunately convinced to do things that were not in their best interests.

Mr. Higgins noted Captain Means would testify on S.B. 551, as would others from law enforcement in the audience. He introduced Dr. Shepperson from the Cyber Crime Task Force, Mr. David Atkinson, Crime Laboratory, and Detective Adam Wygnanski, Reno Police Department.

Mr. Higgins stated part of the bill dealt with the sale of goods to minors over the Internet. He explained young people could buy alcohol, cigarettes, or tobacco products over the Internet. The bill required Internet companies to adopt regulations to attempt to prevent that from happening. The use of computers after commission of such a crime was restricted as a condition of parole or probation. Mr. Higgins stated a large part of the bill contained technical amendments to renumber certain sections of law and make other minor adjustments.

Chairman Anderson expressed a desire that the information in Exhibit C had been presented prior to hearing the bill regarding the electronic transfer of legal documents. He thanked Mr. Higgins for preparing the documents. He expressed appreciation for all the members of the Cyber Crime Task Force. He inquired how the bill was progressing that would make Dr. Shepperson’s position a permanent full-time position. Mr. Higgins replied it was moving along.

Assemblywoman Buckley expressed some concern over Section 24 of S.B. 551 and asked what happened if someone was paroled and the home in which he was staying belonged to someone else who owned a computer. She asked if the section would restrict places to which a person could be paroled. Mr. Higgins replied the bill had been amended in the Senate. Section 24 applied to parolees convicted in three areas; namely an offense involving pornography, minors, or the crime of luring a child through use of a computer. Once pedophiles met their small child victims over the Internet, they cultivated communications and then offered them the opportunity to share nude pictures. They might offer pictures of an adult and a minor engaging in sex. The technique was to inure a child to the sight of pornography. The intent of Section 24 of S.B. 551 was to prohibit a parolee with such crimes in their record from using or owning a computer. That was specified on page 17, line 11, of the bill. He opined it would not mean a computer could not be present in a home where the parolee lived. If the Division of Parole and Probation was advised a parolee had used a computer, that fact could be proven because the electronic evidence would be retrievable. He added there were exceptions to the provision such as a case of a parolee aiding law enforcement through the use of a computer. He recalled some testimony in the Senate suggested if a person had specific technical knowledge that was otherwise unique or unavailable, a judge could consider that in their deliberations. He stressed computers were the tool for commission of the crime of being a pedophile on the Internet.

Chairman Anderson stated the issue had been discussed in an earlier piece of legislation relating to parole and probation. He noted discussion at that time related to a parolee who might obtain a job that required the use of a computer to perform the job. The intent discussed at that hearing was to allow the Division of Parole and Probation to make a determination of computer access on a case-by-case basis.

Assemblyman Collins asked if Section 24 of the bill restricting a computer to a parolee would be similar to someone who was paroled and could no longer have access to a gun. Mr. Collins referred to Section 3, subsection 3, regarding Internet stalking and asked if that section could be used for things such as computer viruses that were sent to legislators during the session. Chairman Anderson suggested S.B. 48 would probably be of more assistance in that area.

Mr. Higgins stated there was a current civil statute dealing with “Spam” electronic mail allowing someone to sue if their e-mail box was flooded in that manner. To reach the cyber stalking level with a Category C felony charge, it needed to be an intentional spreading of information over a wide range. In the instance of legislative e-mail, if a virus was unintentionally spread, it did not constitute a criminal action; however, if one could identify the person who intentionally started a virus, it could be criminally prosecuted.

Assemblyman Brower stated the bill that had been heard at a previous hearing did not have the same problem that he saw in S.B. 551. It seemed the language in Section 24, subsection 1, of S.B. 551 should be narrowed further because it did encompass the use of a computer of any type. The Chair in the other hearing had used the example of someone using a computer cash register at a McDonalds, and S.B. 551 would limit a parolee from working in that capacity. The intent was to prevent the use of a computer with access to the Internet, and he suggested the bill should be amended to narrow the computer limitation.

Mr. Higgins stated the intent was to eliminate access to chat rooms on the Internet that were used to commit crimes. One of the difficulties of electronic crime was anticipating what the next electronic “tool” would be and writing legislation broad enough to reach some new areas of crime, but not down to the level of cash registers.

Chairman Anderson stated, with the sophistication of technology, a Palm Pilot being used as a calendar could be prohibited from a parolee. Technology was emerging in almost all workplaces, and such tight restrictions would make it very difficult for a parolee to obtain employment. If the intent of parole was to rehabilitate and to establish a lifestyle free of sexual problems, they should not be placed in “harm’s way.” At the same time the intent was not to prevent them from making a living. Mr. Higgins concurred with the comments but stated the difficulty was how to separate a pedophile from the ability to commit such a crime again. He said it was his understanding people that were prone to that kind of crime were never cured. The bill specified a narrow set of terms for which Section 24 would be imposed. For instance, it would not be invoked if a parolee had used a computer in the commission of a bank robbery.

Mr. Brower stated if a decision was made to allow someone parole, it was necessary to allow the parolee the opportunity to be productive. The easy fix would be to narrowly tailor the statute to prohibit Internet access. Mr. Higgins agreed, but added the statute would need to also specify restrictions of e-mail and chat rooms.

Chairman Anderson clarified the bill that had been previously heard to which he referred in earlier testimony was A.B. 519.

Assemblyman Carpenter stated page 7, line 21, of S.B. 551, specified that, for a first offense of a crime of soliciting a minor to engage in unlawful sexual conduct, it was a misdemeanor. He expressed concern that multiple offenses only rose to the level of a Category B felony. He suggested the punishment should increase proportionately with repeated offenses. Mr. Higgins stated Section 10 referred to the statute regarding annoying or molesting a minor. It was a very basic harassment statute. Currently, if a person at a bus stop placed his hand on the thigh of a minor, it fell under that statute and would be charged as a misdemeanor. The intent to include the electronic communications in that statute was to provide a means to punish a person at the “low end of the scale.”

Mr. Higgins stated that section pertained to instances where someone placed an advertisement on the Internet to the effect of “if you are a minor, come see me to have sex.” Language earlier in the bill specified, if someone actually engaged in electronic communications with a minor and lured them out of the house, it would be charged at a higher felony level. The intent of Section 10 was to ensure the lesser crime of annoying and harassing a minor also included electronic communications. Mr. Carpenter commented that it seemed one thing led to another and the way to catch someone was when they first started.

Chairman Anderson asked Mr. Higgins to continue his review of S.B. 551 and clarified the Attorney General’s Office submitted an amendment, which was included in Exhibit C. Exhibit D was also an amendment to the bill and he explained Exhibit D referred to Section 1, subsection 1. Mr. Higgins stated he had agreed to the amendment in Exhibit D and was presenting it for the committee on behalf of the Attorney General’s Office and the telecommunication industries.

Mr. Higgins stated for his office to prosecute a case, certain information must be accessed. The intent was to have records maintained so there would be a means to request the names of clients from Internet Service Providers (ISP) when investigating a case. He explained people could buy an “Internet service in a box” and become a provider the next week. When representatives had met with the small providers and asked if they had been running auditing software that would maintain such information, most of the small providers had not even known that existed. The original amendment had set up a “laundry list” the sponsors felt should be kept. After speaking with the telecommunication industry, it was determined the better way was to cite the federal law that already specified the requirements. The amendment would delete Section 1, subsection 1 and replace it with the amendment in Exhibit D.

The second sentence of the amendment had been proposed by representatives from the public libraries who had feared they would be subject to misdemeanor citations if they allowed someone access to the Internet at a public terminal. The amendment exempted the libraries from consideration as an ISP.

Chairman Anderson asked, if he assigned his World History students to do a project on Medieval Europe and, in their exploration, they reviewed the classical works of Michelangelo and examined the classical David statue, would he as a teacher, or the students, be in trouble under the bill or under ECPA. Mr. Higgins replied they would not.

Chairman Anderson stated many libraries had their resources online and many kinds of information could be accessed through them. Historically libraries tried to allow people to exercise their intellectual curiosity, and he asked if he and his students would be limited in the access under ECPA. Mr. Higgins replied ECPA did not reach to the filtering access question. It only reached as far as subscriber information. He explained the policy in the Washoe County Library was that parents were allowed to decide what access children could have. There was considerable federal case law on libraries and filtering software. Mr. Higgins said S.B. 551 also addressed the need for law enforcement to access the content of e-mail messages. He noted those required court orders and search warrants.

Chairman Anderson expressed concern regarding situations where someone might have applied for a library card when they were young and did not know they had certain restrictions on that card when they were adults. He asked if an adult would be prevented certain access at the library. Mr. Higgins stated the compromise the Washoe County Library policy made was to allow parents to decide what sort of Internet access their children could have. Once a person reached the age of 18, those prohibitions expired. Section 1, subsection 2, of S.B. 551 provided that if someone failed to abide by subsection 1, he would be guilty of a misdemeanor violation.

The amendment in Exhibit C proposed to delete Section 1, subsection 3, and add a new subsection 4. One issue in the Senate had been the use of subpoenas to obtain subscriber information. A major purpose of the bill was to allow Nevada to use the provision of ECPA and subpoena basic subscriber information. Law enforcement could contact a telephone company and request the name connected to a specific telephone number or contact a cable company and request who had contracted for cable service at a specific address. Most “crooks” signed up for cable access under their own names when they had not used their real names on anything else. The bill would allow the same type of access to information from the ISP companies. Nevada had no general administrative provisions. The Chairman of the Senate Judiciary Committee was comfortable with the language in the proposed amendments. To obtain such a subpoena there needed to be reasonable cause to believe a felony had been committed, that federal law was adhered to, and that the ISP would only provide information on an individual. One of the concerns expressed had been that law enforcement would have the freedom to request all kinds of information; however, that was not the intent of the legislation, and it was clarified by the amendment.

Mr. Higgins stated after the Senate hearing two Senators handed law enforcement representatives a stack of e-mails and asked if the officer could find out who sent them. Chairman Anderson asked how probable cause was established to request information in such a case. Mr. Higgins replied administrative subpoenas carried a reasonable suspicion standard rather than one of probable cause. The crime committed also had to be a felony crime. If someone sent a daily e-mail advertising fishing gear, that would not be a felony, and the ISP records could not be accessed. If someone sent an e-mail that stated, “We don’t like the way you voted on a bill,” and made a felonious threat, the records could be requested. In cases when someone bought a computer over the Internet and the computer never arrived, that could be charged as theft. Generally, if law enforcement could find out who the person was that sold the computer over the Internet, a little encouragement would solve the situation.

Assemblywoman Buckley expressed concerns about the use of administrative subpoenas. Currently, if law enforcement had a concern, they could obtain a search warrant. S.B. 551 would allow law enforcement access to ISP records without anyone reviewing for the presence of probable cause or reasonable suspicion. The court was the buffer between law enforcement’s right to perform search and seizure. She asked if that protection was completely eliminated. Mr. Higgins stated the amended Section 1, subsection 4, would provide that the subpoena would be treated as a civil subpoena. If an ISP did not want to provide the requested information, law enforcement would be required to request permission through the court system. He explained the process was modeled after civil subpoenas. The two subsections of Section 1 in the amendment were intended to bring Nevada into compliance with, and have the ability to access federal law. ECPA set up access if the state allowed administrative subpoenas, but S.B. 551 only requested a level of civil subpoenas. Additionally, ECPA had a list of tests that must be met if someone objected to the subpoena. He noted all the boards and commissions in the state already had administrative subpoena authority, and several law enforcement agencies had very narrowly defined administrative subpoena powers in very specific areas.

Ms. Buckley requested an outline of all the Nevada Revised Statutes (NRS) that granted administrative subpoena authority for law enforcement. If a board was conducting an investigation, the need was understandable; however, Ms. Buckley opined the bill provided a radical departure from existing criminal law.

Chairman Anderson asked how many states allowed administrative subpoenas. Mr. Higgins replied he understood nearly every state had allowed administrative subpoenas for basic subscriber information. If information was requested beyond basic subscriber information, such as contents of e-mail messages, that was not allowed. A search warrant would be required for the other information with a showing of probable cause.

Detective Adam Wygnanski, Regional Sex Offender Unit, Reno Police Department, clarified Ms. Buckley’s concern. He testified it was crucial for the departments to receive the authorization for administrative subpoenas. He added the bill was not requesting an expansion of power, and he specified the administrative subpoena power would only be used to obtain subscriber information. If further information was needed, search warrant powers would be accessed through the court system.

Detective Wygnanski stated America Online was the largest Internet provider, and their head office was in Loudoun County, Virginia. If someone in Reno or Sparks, Nevada, sent a threatening e-mail to someone in those same cities, to access that subscriber information, the police department would have to administratively subpoena the office in Virginia. Nevada courts would not authorize a warrant to access information in Virginia to obtain the information.

He noted that NRS Chapter 702 was the public utilities statute that contained administrative subpoena authorization for police to obtain subscriber information from the power and electricity companies.

Detective Wygnanski added in the case of America Online, an officer would have to fly to Virginia to request the search warrant to obtain subscriber information. Records held within Internet servers were only held for a specified period of time ranging from within hours to within days. The state of Nevada server dropped information within hours. He stressed time was often of the essence in such cases, before information was no longer retrievable.

Chairman Anderson stated the analogy to utility customer information helped to clarify and he requested Detective Wygnanski to repeat the NRS statute he had cited. Detective Wygnanski stated his reference was to NRS Chapter 702. He added the bill Assemblyman Brower had referred to earlier was S.B. 12, which spoke to Internet access by an individual on parole.

Mr. Higgins continued with his outline of S.B. 551. What was currently Section 1, subsection 4, set forth definitions and would become subsection 5, if the amendment was accepted.

Section 2 was a renumbering technical amendment.

Section 3 of the bill addressed the crime of cyber stalking by adding a new subsection to the statute. If a person committed a crime of stalking through use of the Internet or other means and displayed or otherwise distributed the information that substantially increased the risk of harm or violence to the victim, the penalty increased to a Category C felony. Mr. Higgins explained Internet stalking was often worse than other crimes of stalking because information was spread to hundreds of thousands or even millions of people rather than one-on-one. Not everything was a major crime like the case he had described in Arizona, but a person might place a nude picture of an ex-girlfriend or ex-boyfriend on the Web. The penalty would be increased if the Internet was used in commission of the crime of stalking.

Assemblyman Brower asked if a better definition of the crime would be libel or defamation rather than stalking. He asked if other states used the term “cyber stalking.” He opined the type of stalking described in S.B. 551 did not seem to match the types of stalking found elsewhere in statute. Mr. Higgins replied the term “cyber stalking” had almost become an industry term of art. He opined there were probably 25 or 30 legislative bodies considering cyber stalking as a crime. He explained the Internet provided a means of committing the crime of stalking without making a direct confrontation. It was often difficult to determine who placed such information on the Internet. The impact was similar to other references to stalking, and Mr. Higgins opined that was the reason the term had been chosen.

Section 3, subsection 7, of the bill included other definitions and was contained in other parts of the bill as well.

Section 4 addressed crimes of the “luring of a minor.” Mr. Higgins explained that section was probably the most important to law enforcement. He explained that term of art referred to instances when a female or male child met someone in a “chat room” on the web and shared information. Suddenly the child disappeared, and the last e-mail noted was one that said, “Meet me at the bus station.” He stated some of the cases involved Internet pedophiles who sent bus tickets or money for tickets to a child. He noted one case had involved two teenage girls who were lured from Sparks, Nevada, to North Carolina to meet someone supposedly their age. When they arrived in North Carolina the person turned out to be a 34-year old. The girls had no way home, and they were forced to have sexual relations with that person.

Mr. Higgins stated he had seen more than one instance where a teenager would enter his or her profile in a “teen” chat room and within five minutes there would be “hits” on the teenager offering to send nude pictures or asking for nude pictures. Teen chat rooms had become a method for pedophiles to approach children.

Section 4 created a new crime. It prohibited the use of a computer to contact a person less than 16 years old with the intent to lure that person out of the home without the permission of the parent for any purpose. In the Senate hearings the bill had been amended from, “a person less than 18 years old,” because it was not the intent of the bill to make it a crime for two 18-year-olds to meet outside the home.

Section 4, subsection 2, stated the provisions did not apply if the communication was made with the intent to prevent imminent bodily or emotional harm. He explained if someone sent a message on the Internet that the father was beating them and the reader responded telling them to “get out,” that would not be a crime.

Under Section 4, subsection 3 (a), if the person violated the section causing a child to engage in sexual content, it would be a Category B felony. It would cover situations where an individual was tracked down, and it was known they had a minor in the room. In Nevada, if officers broke into the hotel room where there was a minor present, it would not be a crime until the pedophile had sexual relations with the child.

Chairman Anderson asked if that section expanded current law. Mr. Higgins replied under S.B. 551, officers did not have to wait until a sexual crime had been committed before the crime could be stopped. Mr. Higgins stated if law enforcement found out where a child had gone and they found the child at a bus stop, it would have to be proven beyond a reasonable doubt that the individuals intended to engage in sexual conduct to qualify under the crime specified in that section of S.B. 551.

Chairman Anderson asked if the language in the bill was limited to pedophiles. Mr. Higgins replied if someone aged 16 and under was lured out of the home, the bill applied. Chairman Anderson if the bill applied in a situation where a young lady was 15 years old and a young man was 17 years old wanted to date. Mr. Higgins replied the intent would have to be proven, and that was easier to prove if the individual had a record as a pedophile. If letters were found that stated, “After I meet you at the bus station, this is what we are going to do,” intent could be proven in that way. Obviously discretion had to be used, and it was unlikely a 15- and a 17-year-old would be prosecuted under the statute. It was a possibility if the 17-year-old convinced the 15-year-old to run away with him, and the parents were unaware of their intent. If the purpose of running away was to have sex, the bill could be used to file charges against the 17-year-old.

Section 4, subsection 3(b) applied a Category C felony if the contact was made by providing the child with obscene materials. Pedophiles or stalkers who used the Internet medium commonly tried to inure children to the idea of having sex with an adult by first exchanging photographs, then providing child pornography photographs to convince a child it was appropriate behavior.

If the contact was made to lure a child out of the home without the intent of either subsection 3(a) or subsection 3(b), the crime would be charged as a misdemeanor. Mr. Higgins testified Nevada had no misdemeanor kidnapping statute, and that was the purpose of the language in S.B. 551 at the top of page 5. He noted most states did have a misdemeanor kidnapping statute.

Chairman Anderson expressed concern about a freshman female student who dated a senior male, and the parents objected. He was concerned that the female might testify that it was a case of kidnapping when in fact she got in the car willingly because she was trying to defend herself from an angry parent who had forbidden the relationship. Mr. Higgins stated similar scenarios happened frequently in law enforcement work. He noted at the university level, if a couple had consensual sex and then after the fact someone regretted it or someone objected to it, a decision had to be made as to whether the case was prosecutable or not. Under S.B. 551 certain criteria had to be met for the crime of luring to be prosecuted:

· A computer or the Internet must be used;

· It had to be done with the intent of avoiding parental consent; and

· To lure the child out of the house with the intent to have sex with them.

Mr. Higgins explained the bill did not address the situations where a couple met in the car or they went to dinner at McDonalds and it turned into a sexual relationship. As such, the prior intent would not be present to prosecute. Law enforcement officers were required to make those kinds of prosecutorial calls every day.

Chairman Anderson stated, if the same person was always making the decision, it would be different than having multiple unknown people make those calls. Mr. Higgins stated the Senate had reduced the age from 18 to 16 to capture the people intended in the statute, and he was unsure how it could be reworded to exclude the boyfriend/girlfriend situations.

Assemblyman Brower stated Section 4, in its entirety, seemed vague. It appeared a crime could be committed for simply luring without any specific intent. The bill then provided varying penalties dependent on whether there was specific intent or not, but providing a misdemeanor penalty for cases where there was no intent at all. He stated S.B. 551 seemed to say it was a crime to use a computer to lure or persuade a child away from the home. It would appear an advertising attempt, which could be characterized as an attempt to persuade a minor out of the home, despite the fact there was no illegal intent, might be chargeable as a misdemeanor under that section of the bill. He asked if the language needed to be narrowed further.

Mr. Higgins responded that Nevada did not have a misdemeanor kidnapping statute so, if someone convinced a 15-year-old child to leave the house without parental consent and without the intent to engage in sex with them, the parent would very likely object. Mr. Brower rebutted, if it was an advertisement on the Internet to attend a concert or an event, that was not a crime. The intent was clearly to persuade the minor to leave home, but there was no criminal intent. Mr. Higgins stated S.B. 551 only addressed “one-on-one” communications, so the advertisement example would not be pertinent. Mr. Brower asked if the language was sufficiently narrow to exclude those advertisements being charged as a crime. Mr. Higgins stated Section 10 did make mention of advertisements. People did place ads on the Internet that stated, “If you are a minor and want to have sex with me, I will pay you this much.”

Chairman Anderson asked if Mr. Brower’s concerns to Section 4, of S.B. 551 were addressed, and Mr. Brower replied affirmatively.

Assemblywoman Ohrenschall asked why new statutes had to be created. She asked why, under the vague facts suggested by the bill, a crime could not be charged under existing statutes for attempt, conspiracy, solicitation, and other actions. Mr. Higgins replied the scenario he had related of the 13-year-old girl who had gone voluntarily to the hotel room of a pedophile was an instance where the young person had not been kidnapped; however, she might have been solicited to go, which would be a misdemeanor. Law enforcement did not want to be placed in a position where the only way to prosecute a pedophile was if a sexual relations incident had occurred.

Mr. Higgins stated one famous case was that of a Walt Disney executive who was arrested on the end of the Santa Monica pier thinking he had made a date to meet a 13-year-old who turned out to be a 45-year-old Federal Bureau of Investigation agent. He was arrested before any kind of sexual act had occurred.

Ms. Ohrenschall asked if “attempt” charges could be brought and suggested sexual assault charges could be brought if the individual was underage. Mr. Higgins replied for “attempt” charges to be filed, an “act” in furtherance of the crime had to have occurred. He stated someone would have to be found undressed or in a similarly suggestive situation.

Ms. Ohrenschall asked if the child had been lured into someone’s private quarters, if that would sufficiently constitute an act. Mr. Higgins stated he was not sure how an officer could apply charges of sexual assault if the victim and the perpetrator were just sitting and talking when they were captured, unless there was some evidence that a sexual relationship was about to happen. He added, in some states that had such statutes, the issue was approached in the manner proposed by the bill. He stressed the intent was to capture those people who stalked the Internet looking for people they could approach for sex. The desire was to have a legal tool to stop such behavior before sexual relationships took place.

Ms. Ohrenschall stated she did not understand why, if an incident went as far as getting the child to the stalker’s private location, there was not enough “action” to qualify for a charge of attempt. The bill language seemed nebulous to her as well. Mr. Higgins stated S.B. 551 specifically addressed situations where the Internet was used in the commission of a crime. He stressed prior to the Internet, parents could regulate where their children went; however, with the Internet, there needed to be a way to reach the criminal who set up scenarios through use of a computer by sending child pornography and inducing children to leave home and meet the individual at a hotel room with the intent to have sex with them. Without that, there was no way to charge a “sexual offense” if they were just caught talking in a hotel room. A charge of “attempt” required an “act in furtherance of the crime.” Ms. Ohrenschall stated the means by which a child arrived at the hotel should be considered, and that would bring in use of the Internet. That act would be the action of the adult inducing the child. She opined there would be no more evidence if a new crime was instituted than by making a simple charge of attempt. Mr. Higgins rebutted the bill did create a new crime specific to the situation, and law enforcement believed it was the tool they needed to do their job. He opined the first time the law was used to charge someone with a crime there would be questions about intent.

Mr. Higgins testified the last portion of Section 4, of S.B. 551 set forth definitions as used in other places in the statutes.

Section 5 of the bill had an amendment proposed to it, and that section dealt with sale of tobacco to minors over the Internet. It applied the regulations and laws that currently prohibited the sale of tobacco products to minors in person to sales on the Internet.

The amendment would impact line 30, on page 5, of the bill correcting a typographical error where the age should be changed from 16 to 18 years old to be consistent with other statutes. Federal law required people who sold tobacco over the Internet to keep records of to whom it was sold.

Section 6 applied the same concepts to the sale of alcohol over the Internet. It required that regulations be adopted to prevent the sale of alcohol to someone less than 21 years of age, that the packaging indicate it contained alcohol, and that a signature must be obtained when it was delivered. Mr. Higgins stated he received wine from the Napa Valley all the time, and the delivery persons checked that the receptionist in his office was 21 years of age.

Chairman Anderson asked if Section 6 would prevent a child from using the cab company to stop by a liquor store and deliver the product to the child at home. Mr. Higgins stated he had not anticipated that scenario. He stated S.B. 551 reflected situations where individuals got on the Internet and ordered a case of beer from a microbrewery and had it delivered to the house. He stated the bill would not address the cab company situation.

Sections 7, and 8, of the bill contained technical amendments that renumbered other sections in statute.

Section 9 dealt with encryption on the Internet. It was common to see a pedophile with an encrypted hard drive, where they had encrypted their e-mail messages and their compact discs containing child pornography. There was a current statute that made it a gross misdemeanor to use encryption in the furtherance of a crime. At the request of law enforcement and some members of communities, Section 9 proposed to make the use of encryption in those circumstances qualify as a gross misdemeanor unless the encryption was used or attempted for usage in a crime qualifying for a greater penalty. Potentially, law enforcement often received enough information to know child pornography existed, but they could not get to all of it because of encryption. The law would allow an additional charge under Section 9.

Section 10 that had already been discussed added electronic communications to the annoying or molesting statute. That was the basic misdemeanor statute for people who bothered minors, and it would include solicitation for sex and certain advertisements. He stressed people did place ads on the Internet to say they would pay to have sex with a minor.

Section 11 added the luring statute specified in Section 6 to other statutes. Section 12 was a similar technical amendment.

Section 13 was a parallel to Section 24 discussed earlier concerning parole, and it addressed the same restrictions for probation. If someone was convicted of using a computer for child pornography, the court would impose those mandatory probation restrictions unless certain conditions were met.

Sections 14 through 18 added the definition of luring a child to various sexual offense statutes. One example was that Section 14 added the definition to the pre-probation psychological or psychiatric screening required of sexual offenders. Section 15 added it to the list of crimes included in the victim notification statutes. Section 16 added it to the list of crimes eligible for wire intercepts.

Sections 19 and 20 were technical amendments for renumbering.

Sections 21 through 24 were definition amendments.

Section 26 was another technical amendment and included the definition of the luring statute in the pre-parole psychological or psychiatric certifications.

Section 27 contained technical amendments.

Section 28 contained a provision that the amendatory language only applied to acts committed after the adoption of the statute.

Section 29 provided the bill became effective upon passage and approval. Mr. Higgins stated that completed the summary of the bill and offered to answer questions from the committee.

Detective Wygnanski testified that S.B. 551 was critical and necessary to enable law enforcement to identify the user/abuser of the Internet and to further their investigations. He explained the bill was a key component for law enforcement to target preferential sex offenders whose whole intent in life was to fulfill their desire to have sex with children. He emphasized law enforcement was not trying to reach the 17- and 18-year-olds in the dating process. Detective Wygnanski concluded by saying that when the office of an Internet provider was out-of-state, it was important to gain access to client information as quickly as possible for investigations to move forward.

Chairman Anderson asked for confirmation that Detective Wygnanski’s primary concerns were focused on the earlier sections of the bill dealing with obtaining information in as quick a time frame as possible. Also, he asked if there was a need to address the issues peculiar to the Internet industry. How were such cases currently prosecuted without the law? Detective Wygnanski replied, “We are not.” They could not get subscriber information without traveling out-of-state.

Chairman Anderson asked for confirmation if law enforcement did not already enter a crime scene and pick up computers. He related a tragic incident recently at Lake Tahoe in which a young girl was taken, and among the things that were confiscated from the suspect’s house was the computer. Detective Wygnanski stated once all the evidence was gathered and a search warrant was issued to seize items such as computers, then forensic computer specialists could obtain any pertinent data from the computer. Knowing the identity of the Internet subscriber who started the luring or stalking incident would enhance the initial investigation steps.

Chairman Anderson recessed the committee and reconvened at 10:45 a.m. He stated a quorum was present. He noted Assemblyman Nolan was excused for the day and Assemblywoman Angle and Vice Chair Manendo were not present at the time of reconvening.

Ms. Emily Hackett, State Policy Director, representing Internet Alliance, testified from prepared testimony (Exhibit E). She requested the committee reject the data retention requirements in S.B. 551 and support the amendment proposed by the Deputy Attorney General that required service providers to preserve subscriber records outlined in Title XVIII of the U.S.C. 703. The adoption of the proposed amendment and the proactive policies in the bill would make Nevada a leader in the fight against Internet crime.

Ms. Hackett explained the Internet Alliance (IA) was the leading Internet trade association operating at the state, national, and international levels. The Internet State Coalition was the state government affairs arm of the Internet Alliance. Leading members of the coalition were America Online, Time-Warner, International Business Machines (IBM), Juno, eBay, Privada, Yuroka, and Commercial Internet Exchange (a trade association representing very small Internet service providers (ISP)).

The Internet Alliance’s Law Enforcement and Security Council (LESC) was a group formed specifically to advance safety and security on the Internet. Initiatives undertaken included law enforcement training, development of child pornography reporting mechanisms for the National Center for Missing and Exploited Children, industry education campaigns, and the sponsorship of industry and law enforcement forums.

Law enforcement was responsible for conducting very sophisticated cyber crime investigations with very few resources. The IA continually called for appropriations from local and state agencies in the area of cyber crime.

The primary concern of the IA was that the data retention requirements in S.B. 51 were unnecessary, very expensive, and ultimately unworkable. Ms. Hackett stated her written testimony included justification of why the data retention requirements were so horrific. Ms. Hackett concluded by stating the IA wanted to invite Nevada to lead the states in the fight against cyber crime by embracing a model of law enforcement and industry cooperation. Nevada would be the second state to adopt a model that supported the growth of e‑commerce while protecting its citizens. New York was the first.

The IA committed to work with the Office of the Attorney General to create an Internet Crime working group consisting of the Internet industry and law enforcement agencies to develop methods, procedures, and training models to fight cyber crime.

Chairman Anderson stated one bill-drafting problem with the amendment might revolve around the purpose of 18 U.S.C. 703, and whether it really applied relative to the bill. Nevada typically placed in the statutes what the practice would be at a particular moment in time. Chairman Anderson asked how the federal statute truly applied to the bill. Ms. Hackett stated it did apply and deferred to Mr. Ron Teixeira.

Mr. Ron Teixeira, Manager, Global Law Enforcement and Security Affairs for the IA, stated the federal statute did apply in Nevada, and it would be helpful if it was specified in statute. Preservation of records was very useful for law enforcement and was practiced in the United States as well as internationally.

Ms. Lang, Committee Counsel, stated 18 U.S.C. 703 dealt more with a situation when a government agency had access to electronic communications, whereas the section of Nevada law addressed by the amendment dealt with creating and maintaining records; thus, it did not appear they were dealing with the same issue. Ms. Hackett asked if the word “create” was causing the problem. Ms. Lang stated the section of statute addressed by the amendment dealt with creating and maintaining records, while the statute in the federal law dealt with access to information.

Mr. Teixeira explained if an ISP collected certain information such as the Internet Protocol Address, and a law enforcement agency wanted to ensure that information was not deleted, the law enforcement agency would call for “preservation” of the record. If the information was not “preserved” it was possible it would be deleted and evidence would be lost. Information must first be preserved before access to it could be obtained.

Chairman Anderson stated the issue would be discussed further if needed if the bill was passed with the amendment.

Assemblywoman Buckley stated because the federal statute dealt with federal procedure it would be “clumsy” in statute to require each Internet provider to create and preserve a record by citing the federal statute. She stated, if the point was that Nevada should adopt the same or similar procedures, that could be done, but bill drafting would have to review the federal statute more thoroughly. Ms. Hackett offered herself and Mr. Teixeira to consult on the issue.

Ms. Buckley referred to the section of law that stated, “a governmental agency may require the disclosure of the contents of the communication that had been in electronic storage for more than 180 days by the means available in subsection b . . .” She asked if the Internet Alliance was suggesting Nevada adopt that language as well. Mr. Teixeira replied they were asking that, instead of data retention requirements, there should be a preservation procedure set in place.

Mr. Jim Endres, representing AT&T and its business services for the Internet, testified in support of the amendment to Section 1, subsection 1, of S.B. 551.

Mr. Steve Tackes represented other competitive telephone companies who operated Internet service provisions, including MCI WorldCom, Advanced Telecom Group, XO Communications, and Pac-West Telecom. He testified in support of the amendment to S.B. 551.

Mr. Tackes referred to an earlier question regarding why the amendment specified 18 U.S.C. 703 in its entirety. He referred the committee to subsection (c)(C) that set forth the precise information to be collected and preserved by ISPs. He stated in a search for specifics of what was being required nationwide and what would assist Nevada law enforcement officials, it was found that that subsection appeared to be linked to the remainder of the federal regulation. Subsection (f) addressed the specifics of preservation of the evidence.

Mr. Bob Gastonguay, Executive Director, Nevada State Telecommunications Association, stated his association had supported S.B. 485 of the Seventieth Session, which addressed hi-tech crime. He stood in support of S.B. 551 and the amendment.

Mr. Robert Crowell, representing the Clark County Library, testified in support of the amendments to the bill. He explained the portion of the amendment, which exempted libraries that allowed patrons to access to the Internet, was included because screening was conducted at the location of the local access provider. Clark County had a very good screening process for juveniles who accessed their services.

Mr. Crowell stated the bill addressed records retention, which was somewhat different than the screening issue. With the broad definition of ISP in current statute, there was concern that the bill, as drafted, would require the library to track its patrons with regard to the information specified in Section 1.

Mr. Crowell stated under the confidentiality law, NRS 293.013, when patrons used the library, the access to their records was confidential unless otherwise disclosed by a court order.

Chairman Anderson noted some libraries had a committee that determined what books would be held in reserve offerings because of their content, such as Catcher in the Rye, by J.D. Salinger. He asked what the library would do if parent went to the library and requested a list of all books checked out by their child for the month. Mr. Crowell replied if the offspring was an adult the request would not be honored without a court order. If the offspring was a child, the confidentiality law still applied although other considerations might affect the decision. He stated NRS 293.013 even applied to children.

Chairman Anderson asked specifically, if a parent wanted to determine if their child was reading a book from a “condemned” reading list, would that be allowed. Mr. Crowell stated he believed the answer would be “no,” but he would research the question further. The Chair expressed his hope that libraries were still operating under the freedom of information tenet and still provided appropriate material by reading level and not those that might be set by particular groups on a specific list.

Chairman Anderson inquired if bill drafting would have any difficulty with the second sentence of the amendment, exempting libraries as an ISP under the act. Ms. Lang replied the language appeared acceptable.

Dr. Richard Siegel, President, American Civil Liberties Union of Nevada, testified he appeared in reaction to the original language of Section 1 of the bill. He stated the record keeping and detail of that language was horrifying. He explained he was part of a process to develop a computer policy for the University and Community College System of Nevada. The most important value of that committee was one of privacy. The primary concern was that there be no undue violation of individual privacy.

Dr. Siegel supported the proposed amendment that related to federal law because that was already established. He reiterated, even if Americans had given up some of their rights to privacy with record keeping by telephone companies and the right to privacy in cellular telephone usage where law enforcement could listen to cellular telephone conversations without a court order, the remaining privacy issues the public retained must be protected. Dr. Siegel asked the committee to balance the needs of law enforcement with the privacy of the individual.

Dr. Siegel referred to the library exemption and noted the universities had student computer laboratories to which there was no controlled access. He stated those were not directly a part of a library system, but the situation was similar to a service provider.

Dr. Siegel stated he was troubled over the discussion of a 17-year-old luring a 16-year-old out of the home. He noted the response had been the situation would be handled with discretion. The bill would make the issue a serious crime. To criminalize the social interaction of teenagers and to rely on police discretion was not realistic. He suggested amending the bill to raise the age of the perpetrator would alleviate the problem. He asked the committee not to criminalize the judgment of 17-year-olds.

Chairman Anderson stated society was much more aware of exploitation of children by adults and even young teenagers. He stated committee members continually heard that such problems were identified at early ages, and there was a growing concern about how to identify those people who had learned behaviors, in many cases, and get them into treatment programs so they did not become set in pedophile habits.

Dr. Siegel stated such legislation did have unintended consequences, but the bill was explicit regarding what a 17-year-old could do with a 16-year-old without parental consent.

Chairman Anderson asked if the concern was the teenager would use his Palm-7 handheld computer to contact the teenage girl as he pulled up in front of her house and get her to leave the house with him. Dr. Siegel stated teenage sexuality was a fact of life, and the bill might criminalize normal sexuality.

Mr. Clark “Danny” Lee, Legislative Consultant, Nevada Library Association, stood in support of the bill from the audience.

Mr. James Jackson, representing the Nevada Attorneys for Criminal Justice (NACJ), stated he had signed in as opposing S.B. 551 prior to the proposed amendment being shared with him. He noted Dr. Siegel’s comments addressed many of the concerns his group had with the bill. He stated the questions from the committee discussed with Mr. Higgins regarding what was already in law had been a further issue.

Chairman Anderson asked if Mr. Jackson had any specific recommendations relative to statute, not technical questions, of the bill. Mr. Jackson replied Dr. Siegel very eloquently discussed the greatest area of concern by the NACJ regarding the issue of “luring” and treating it as a Class B misdemeanor. The suggestion to redraft the section to an older age would be proper. The discretion of law enforcement was not the question, but he asked why something should be criminalized if those younger teenagers were not really the issue.

Chairman Anderson clarified Mr. Jackson was referring to page 3, line 18, of S.B. 551 that made luring a Category C felony. Mr. Jackson replied he was referring to the Category B felony on page 4, Section 4, of the bill. Mr. Anderson clarified the reference was at line 42. Mr. Jackson stressed the NACJ was not suggesting being light with a pedophile who was stalking or attempting to lure a child away from their home.

Mr. Jackson commented there were a number of governments that were licensed as Internet Service Providers including the state, and he did not know what kinds of fiscal effects the provisions of the bill would have on them as well.

Chairman Anderson asked if Mr. Higgins had any suggestions relative to the concerns that had been raised in testimony. The Chair commented no one had concerns about those people who had been previously adjudicated as pedophiles; however, the problem occurred with the teenagers caught in unintended consequences. Mr. Higgins replied the intent of the bill was not to capture the 18-year-old, and that was why the age had been lowered by the amendment to 16-years-old. On the other hand, if there was a 17-year-old who had succeeded in luring a 10- or 11-year-old out of the house and had sexual relations with that child, he wanted to be able to prosecute that situation under the statute. The current sexual seduction statute contained a bracket to the effect that if the two people were so close in age, the sexual seduction statute did not apply.

Mr. Higgins stated if he had a 16-year-old daughter and her boyfriend was an 18-year-old “hood,” he did not want her seeing him. If the boy managed to lure her out of the house, and they had sexual relations, he would object.

Mr. Higgins reiterated the intent of the legislation was not to capture teenage dating relationships with or without parental approval; however, he did want to be able to reach the 17-year-old perpetrator and the 10-year-old victim.

Mr. Jackson stated he would be happy to work with Mr. Higgins.

Chairman Anderson asked about the second question raised by Dr. Siegel relative to educational institutions that had learning laboratories. Mr. Higgins replied the intent of the second sentence of the amendment was to ensure the public library that allowed someone to use an Internet terminal was not required to maintain records. He stressed he had felt that particular amendment was not necessary because he knew no library in the state that was an ISP; however, he supported the amendment. University libraries were ISPs and, to the extent that they kept records, the bill included the provision to require them to produce the records. In the case of a computer laboratory, the bill would, through a subpoena, require records to be preserved and provided. He noted if it was a system that required a password to retrieve information, the information could be obtained; however, if it was a “walk-in” laboratory with no password required, they were not obligated to maintain the information anew through the bill. He noted universities, in general, were one of the primary places where viruses originated and the type of crimes addressed by the bill happened.

Mr. Clark “Danny” Lee, Legislative Consultant, Nevada Library Association, testified the amendment to Section 1 was directed at only one library – the Clark County Library. That library had a common computer system that supported all the libraries in southern Nevada and did provide Internet service for the North Las Vegas Library. Henderson and Boulder City had their own systems. The concern was that because of the unique situation, they might be considered an ISP.

Chairman Anderson closed the hearing on S.B. 551. He noted Mr. Higgins would provide Ms. Buckley with information as to how other state statutes addressed similar access to subpoena powers. He requested Mr. Higgins and Mr. Jackson to examine the statutory scheme more closely in terms of first-time sexual offenders to raise the comfort level of the committee and provide the necessary information to Mr. Anthony. Mr. Higgins clarified the Chair was requesting a small language change to specify the issue of first-time offenders.

The Chair provided committee members with a copy of the overview of legislation remaining with the committee prepared by staff (Exhibit F).

Mr. Anthony provided an overview of Exhibit F. On page 1 were bills currently under consideration. Page 2 contained bills to be heard on May 18, 2001 in Work Session with the possible addition of S.B. 551. Page 3 contained bills remaining on the board. Page 4 was a status sheet for the session.

Chairman Anderson noted Exhibit F, page 5, was something he and staff reviewed consistently. The Senate had sent 59 bills, and 37 had already been approved. Seventeen had no action taken on them, and six were yet to be heard. He noted S.B. 47 was a bill that had been posted, but no one had appeared to sponsor the bill. One Assembly bill yet to be heard was A.B. 666, the Reviser’s Bill that had already received two conflict notices. He added S.B. 551 had also received a conflict notice. He announced the committee would not meet on Saturday.

Chairman Anderson adjourned the meeting at 11:37 a.m.

RESPECTFULLY SUBMITTED:

Cindy Clampitt

Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

DATE: