SB485: relative to video stalking.

SB 485-FN - AS INTRODUCED

2004 SESSION

04-3203

04/10

SENATE BILL 485-FN

AN ACT relative to video stalking.

SPONSORS: Sen. Johnson, Dist 2; Rep. Keans, Straf 67

COMMITTEE: Judiciary

ANALYSIS

This bill prohibits unlawful video surveillance and provides exceptions for law enforcement personnel engaged in the course of their official duties and the use of video security systems.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

04-3203

04/10

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Four

AN ACT relative to video stalking.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Chapter; Offenses Against Privacy. Amend RSA by inserting after chapter 645 the following new chapter:

CHAPTER 645-A

OFFENSES AGAINST PRIVACY

645-A:1 Definitions. In this chapter:

I. "Imaging device" means any mechanical, digital or electronic viewing device, camera, or any other instrument capable of recording, storing, or transmitting visual images that can be utilized to observe a person.

II. "Sexual or other intimate parts" means the human male or female genitals, pubic area or buttocks, or the female breast below the top of the nipple, and shall include such part or parts which are covered only by an undergarment.

III. "Disseminate" means to give, provide, lend, deliver, mail, send, forward, transfer, or transmit, electronically or otherwise, to another person.

IV. "Publish" means to:

(a) Disseminate with the intent that such image or images be disseminated to 10 or more persons.

(b) Disseminate with the intent that such images be sold by another person.

(c) Post, present, display, exhibit, circulate, advertise, or allow access, electronically or otherwise, so as to make an image or images available to the public; or

(d) Disseminate with the intent that an image or images be posted, presented, displayed, exhibited, circulated, advertised, or made accessible, electronically or otherwise, and to make such image or images available to the public.

V. "Sell" means to disseminate to another person, or to publish, in exchange for something of value.

645-A:2 Unlawful Surveillance.

I. A person shall be guilty of a class A misdemeanor when:

(a) For his or her own, or another person's amusement, entertainment, or profit, or for the purpose of degrading or abusing a person, he or she knowingly uses or installs, or knowingly permits the utilization or installation of an imaging device to surreptitiously view, transmit, or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person's knowledge or consent; or

(b) For his or her own, or another person's sexual arousal or sexual gratification, he or she knowingly uses or installs, or knowingly permits the utilization or installation of an imaging device to surreptitiously view, transmit, or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person's knowledge or consent; or

(c) For no legitimate purpose, he or she knowingly uses or installs, or knowingly permits the utilization or installation of an imaging device to surreptitiously view, transmit, or record a person in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower, or any room assigned to guests or patrons in a motel, hotel, or inn, without such person's knowledge or consent. For the purposes of this subparagraph, when a person knowingly uses or installs, or knowingly permits the utilization or installation of an imaging device in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower, or any room assigned to guests or patrons in a hotel, motel, or inn, there is a rebuttable presumption that such person did so for no legitimate purpose; or

(d) Without the knowledge or consent of a person, he or she knowingly uses or installs, or knowingly permits the utilization or installation of an imaging device to surreptitiously view, transmit, or record, under the clothing being worn by such person, the sexual or intimate parts of such person.

II. A person shall be guilty of a class B felony when he or she is convicted of unlawful surveillance under this section 2 or more times within a 10-year period.

645-A:3 Dissemination of an Unlawful Surveillance Image. A person shall be guilty of a class A misdemeanor when he or she knowingly disseminates an unlawful surveillance image obtained pursuant to RSA 645-A:2.

645-A:4 Sale of an Unlawful Surveillance Image. A person shall be guilty of a class B felony when:

I. He or she knowingly sells or publishes an unlawful surveillance image obtained pursuant to RSA 645-A:2; or

II. Having created an unlawful surveillance image in violation of this chapter, or in violation of the law in any other jurisdiction which includes all of the essential elements of either such crime, or having acted as an accomplice to such crime, or acting as an agent to the person who committed such crime, he or she knowingly disseminates such unlawfully created image; or

III. He or she is convicted of an offense under this section and has been previously convicted under this section within the past 10 years.

645-A:5 Exceptions. The provisions of this chapter shall not apply to:

I. Law enforcement personnel engaged in the conduct of their authorized duties.

II. The use of video security systems or video surveillance systems wherein a written notice is conspicuously posted on the premises stating that such a system has been installed for the purpose of security.

III. The use of video surveillance devices installed in such a manner that their presence is clearly and immediately obvious.

2 Effective Date. This act shall take effect January 1, 2005.

LBAO

04-3203

Revised 1/6/04

SB 485 FISCAL NOTE

AN ACT relative to video stalking.

FISCAL IMPACT:

The Judicial Branch, Judicial Council, Department of Corrections, and Association of Counties state this bill will increase state and county expenditures by an indeterminable amount in FY 2005 and each year thereafter. There will be no fiscal impact on state, county, and local revenue or local expenditures.

METHODOLOGY:

The Judicial Branch states this bill establishes a new chapter in the Criminal Code, RSA 645-A, which prohibits video surveillance. Violations of the chapter are class A misdemeanors for the first offense, and class B misdemeanors for the second or subsequent offenses in a ten-year period, except that the sale of an unlawfully-obtained image is a class B felony even for the first offense. A class A misdemeanor carries the potential of incarceration and, therefore, the potential for de novo appeals to the superior court for a jury trial. A felony offense can involve arraignment, bail, and probable cause hearings in the district court, numerous hearings and a jury trial in the superior court, and an appeal to the supreme court. The cost of a full day's trial in the superior court, without even considering the cost of the jury is $950.48, assuming the costs of a Judge, Court Monitor, Deputy Clerk, and Bailiff. In addition, the cost of preliminary hearings, a jury, staff time to write a charge to the jury, and clerical processing would bring the cost of a jury trial in excess of $1,000 per day. Should a decision be appealed, several thousands of dollars of additional costs would be incurred in judge, law clerk, and staff time at the supreme court. The Branch is unable to determine the exact fiscal impact at this time.

The Judicial Council assumes that any cases arising from the enactment of this bill for which the Indigent Defense Fund may be liable will, in the first instance, be handled by the public defender or contract attorneys who accept these cases on a fixed fee basis of $250 per misdemeanor and $687.50 per felony charged. If an assigned counsel attorney must be used, the hourly rate of $60, with a fee cap of $1,000 for a misdemeanor and $3,000 for a felony will apply. If a motion to exceed the fee cap is approved and/or "services other than counsel" are approved, these will also be chargeable to the Indigent Defense Fund. The Council is unable to determine the exact fiscal impact at this time since they are unable to predict the number of cases that may result from the passage of this bill.

The Department of Corrections estimates no more than two persons a year would be incarcerated in a state prison as a result of this bill. The average cost of incarceration for FY 2003 was $25,341 per inmate per year. The exact fiscal impact cannot be determined at this time.

The Association of Counties states to the extent individuals are prosecuted, the county may incur the cost of pre-trial detainment at the county department of corrections. The average annual cost for counties to incarcerate inmates is $21,633.55. The Association states the total exposure to the counties would be dependent on the number of individuals convicted and sentenced under the new law, which cannot be determined at this time.

The Department of Justice states the agency seldom becomes involved in the prosecution of violations of offenses against privacy and the Department assumes they would continue not to be involved. Therefore, a change in the penalty for such a violation would have a negligible effect on the agency.