Hawaii and Arizona have both recently enacted major cybercrime legislation addressing cyber-stalking and cyber-harassment. In both states, the some of the legislation was narrowed after initial drafts were accused of over-breadth.
In the second segment, Hawaii Rep. Kymberly Marcos Pine, the Minority Floor Leader, will talk about Hawaii’s passage of her cybercrime package. The interview falls on the anniversary of the 1989 murder of actress Rebecca Schaeffer (“My Sister Sam”) by a stalker that led to enactment of stalking laws shortly thereafter.
1. Rep. Kymberly Marcos Pine
Representative Kymberly Marcos Pine was elected to the State House of Representatives in 2004. She is currently the Minority Floor Leader. She represents District 43, which covers the areas of West Loch Fairways, West Loch Village, a portion of Ewa By Gentry, Puuloa, Ocean Pointe, Ewa Beach and Iroquois Point. She is the first Republican to be elected to this seat since statehood. A trained journalist, Kymberly never imagined that she would be an elected official.
Pine is of Filipino ancestry. She graduated from the University of California, Berkley in 2000 with a degree in English. She was a journalist before becoming a politician. In 2007 she was named one of the nation’s 100 most influential Filipina women by the Filipina Women’s Network. She was the youngest to be appointed as Director of Minority Research in the State House of Representatives.
Kymberly is also related to Alexander Hamilton.
2. Summary of Hawaii Cyber Crime Package
News Release from Rep Kym Pine
As of July 10, four 2012 Legislative session bills to curb Hawaii’s growing cyber crime trend have become law. A measure to combat cyber bullying (HB 2295) was signed by the Governor on June 28 and a measure to prohibit adults from soliciting minors to electronically transmit nude images of a minor(s) (SB 2222) was signed on July 3. On July 9, the Governor signed a measure to strengthen Hawaii’s existing computer fraud and unauthorized computer access laws (HB 1788). The Governor signed a measure allowing out-of-state records to be subpoenaed in criminal cases (HB 1777) on July 10.
As part of her efforts to protect cyber crime victims and aid law enforcement, Representative Kymberly Marcos Pine worked closely with prosecutors and victims throughout the legislative session.
“One of my major focuses this session was to protect victims from cyber criminals,” said Rep. Pine. “I am delighted that the Legislature passed these important measures and the Governor recognized the seriousness of cyber crime and its devastating effect on the people of Hawaii. These new laws give hope to victims that their perpetrators will be prosecuted.”
Under these laws, prosecutors and law enforcement will have increased ability to investigate, obtain evidence, and bring cyber criminals to justice with new or stiffer penalties.
HB 1777 authorizes judges in Hawaii’s State court system to require that certain records located or held by entities outside Hawaii be released to the prosecution or defense in a criminal case. Prosecutors will now be able to obtain evidence that is often in the hands of mainland corporations, such as cell phone records. The Honolulu Prosecutor’s Office advocated for the bill, testifying that it was the most important action Hawaii could take to aid in the prosecution of cybercriminals.
HB 1788, a cybercrime omnibus bill, strengthens existing computer crime laws by making computer fraud laws mirror Hawaii’s identify theft laws; the result is that accessing a computer with the intent to commit theft becomes a more serious offense. The law also imposes harsher penalties by reclassifying the severity of computer fraud and unauthorized computer access offenses. Notably, the bill creates the new offense of Computer Fraud in the Third Degree, a class C felony; this particular crime would involve knowingly accessing a computer, computer system, or computer network with intent to commit theft in the third or fourth degree.
HB 2295 expands the existing offense of Use of a Computer in the Commission of a Separate Crime to include situations where a perpetrator knowingly uses a computer to pursue, conduct surveillance on, contact, harass, annoy, or alarm the victim or intended victim of the crimes of Harassment under HRS 711-1106 or Harassment by Stalking under HRS 711‑1106.5. This law recognizes that using a computer to commit such crimes is an aggravating factor that justifies an additional penalty.
SB 2222 addresses “sexting.” The bill would create two new offenses in HRS chapter 712 that would: Prohibit an adult from intentionally or knowingly soliciting a minor to electronically transmit a nude image (photo or video) of a minor to any person (misdemeanor ); prohibit a minor from knowingly electronically transmitting a nude image of him/herself or any other minor to any person, or intentionally or knowingly soliciting another minor to do so (petty misdemeanor); and prohibit a person of any age from knowingly possessing a nude image transmitted by a minor (but a person charged with this crime would have an affirmative defense that he/she made reasonable efforts to destroy the nude image (petty misdemeanor).
In addition to these measures, Pine also was behind another bill (H.R. 2288) that would have required:
Any internet service provider that provides internet service to a consumer in the State shall retain consumer records for no less than two years. The required data for the consumer records shall include each subscriber’s information and internet destination history information.
Pine abandoned this proposal after widespread criticism. See Hawaiian politician backs away from Web dossier law (CNet).
3. Arizona Law
The Arizona measure passed the legislature and then was further amended prior to Governor Brewer’s signing after widespread denunciation in the press. The amended version of the bill removed “annoy” and “offend” so that the bill would only apply to electronic speech that is intended to terrify, threaten, intimidate, or harass. In addition, the intent to terrify, threaten, intimidate, or harass must be of a specific person(s) rather than a general intent. The communication must be directed to the person the speaker intends to terrify, threaten, intimidate, or harass rather than be a general communication. Finally, the legislation is limited to telephone calls, text messages, instant messages, and email.
Because the originally passed version was so broad, it provoked a humorous response from Anonymous in opposition.
See also Arizona to outlaw Internet stalking (Arizona Republic); The Arizona Legislature Tries to Bully the Constitution (Forbes); Anonymous fights Arizona censorship bill with ‘butthurt form’ (RT).
4. The Hawaiian Legislation