Bill Text: NY S05157 | 2017-2018 | General Assembly | Introduced


Bill Title: Requires courts to issue orders authorizing mobile phone surveillance devices or systems; adds provisions for determinations; provides for a thirty day time period with thirty day extension.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2018-01-03 - REFERRED TO CODES [S05157 Detail]

Download: New_York-2017-S05157-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          5157
                               2017-2018 Regular Sessions
                    IN SENATE
                                      March 9, 2017
                                       ___________
        Introduced  by  Sen.  RANZENHOFER -- read twice and ordered printed, and
          when printed to be committed to the Committee on Codes
        AN ACT to amend the  criminal  procedure  law,  in  relation  to  orders
          authorizing mobile phone surveillance devices or systems
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. The article heading of article 705 of the  criminal  proce-
     2  dure  law,  as  added  by chapter 744 of the laws of 1988, is amended to
     3  read as follows:
     4                     PEN REGISTERS [AND], TRAP AND TRACE
     5                    DEVICES AND MOBILE PHONE SURVEILLANCE
     6                             DEVICES OR SYSTEMS
     7    § 2. Section 705.00 of the criminal procedure law is amended by adding
     8  a new subdivision 7 to read as follows:
     9    7. "Mobile phone surveillance device or system" shall mean  technology
    10  that  identifies,  tracks,  or  locates cellular devices by forcing each
    11  compatible cellular device in  a  given  area  to  disconnect  from  its
    12  service  provider  cell  site  and  establish  a new connection with the
    13  device by mimicking a wireless carrier cell tower.   During the  process
    14  of  forcing  connections from all compatible cellular devices in a given
    15  area, the mobile phone surveillance device or system operator determines
    16  which device is a desired surveillance target by downloading the identi-
    17  fying data from each of the cellular devices  connected  to  the  mobile
    18  phone surveillance device or system.  Identifying data is transmitted to
    19  the mobile phone surveillance device or system through radio waves.
    20    § 3. Section 705.05 of the criminal procedure law, as added by chapter
    21  744 of the laws of 1988, is amended to read as follows:
    22  §  705.05  Pen  register [and], trap and trace and mobile phone surveil-
    23          lance authorizations; in general.
    24    Under circumstances prescribed in this article, a justice may issue an
    25  order authorizing the use of a pen  register  [or],  a  trap  and  trace
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD08093-01-7

        S. 5157                             2
     1  device,  or  a  mobile phone surveillance device or system upon ex parte
     2  application of an applicant who is authorized  by  law  to  investigate,
     3  prosecute  or  participate  in  the prosecution of the designated crimes
     4  which are the subject of the application.
     5    § 4. Section 705.10 of the criminal procedure law, as added by chapter
     6  744 of the laws of 1988, is amended to read as follows:
     7  §  705.10  Orders authorizing the use of a pen register [or], a trap and
     8               trace device, or a  mobile  phone  surveillance  device  or
     9               system; when issuable.
    10    An  order authorizing the use of a pen register [or], a trap and trace
    11  device, or a mobile phone surveillance device or system may issue only:
    12    1. Upon an appropriate application made in conformity with this  arti-
    13  cle; and
    14    2. Upon a determination that an application sets forth specific, arti-
    15  culable  facts,  warranting  the applicant's reasonable suspicion that a
    16  designated crime has been, is being, or is about  to  be  committed  and
    17  demonstrating that the information likely to be obtained by use of a pen
    18  register  [or],  trap  and  trace  device,  or mobile phone surveillance
    19  device or system is or will be relevant to an ongoing criminal  investi-
    20  gation of such designated crime.
    21    § 5. Section 705.15 of the criminal procedure law, as added by chapter
    22  744 of the laws of 1988, is amended to read as follows:
    23  §  705.15 Application for an order authorizing the use of a pen register
    24               [or], a trap and trace device, or a mobile  phone  surveil-
    25               lance device or system.
    26    1.  An  ex  parte application for an order or an extension of an order
    27  authorizing the use of a pen register [or], a trap and trace device,  or
    28  a  mobile  surveillance  device  or  system must be made to a justice in
    29  writing, and must be subscribed and sworn to by the applicant.
    30    2. The application must contain:
    31    (a) The identity of the applicant and the identity of the law enforce-
    32  ment agency conducting the investigation; and
    33    (b) A statement of facts and circumstances sufficient to  justify  the
    34  applicant's  belief  that an order authorizing the use of a pen register
    35  [or], a trap and trace device, or a mobile phone surveillance device  or
    36  system should be issued, including (i) a statement of the specific facts
    37  on  the basis of which the applicant reasonably suspects that the desig-
    38  nated crime has been, is being, or is about to be committed  and  demon-
    39  strating  that  the  information  likely  to be obtained by use of a pen
    40  register [or], a trap and trace device, or a mobile  phone  surveillance
    41  device  or system is or will be relevant to an ongoing criminal investi-
    42  gation of such designated offense, (ii) the identity, if known,  of  the
    43  person  to  whom is leased or in whose name is listed the telephone line
    44  to which the pen register or trap and trace device is  to  be  attached,
    45  (iii)  the  identity,  if known, of the person who is the subject of the
    46  criminal investigation, (iv) the number  and,  if  known,  the  physical
    47  location  of  the  telephone  line to which the pen register or trap and
    48  trace device is to be attached and, in the case  of  a  trap  and  trace
    49  device, the geographic limits of the trap and trace order, (v) a partic-
    50  ular description of the nature and location of the facilities from which
    51  or  the place where the communication is to be intercepted and a partic-
    52  ular description of the type of the communications sought to  be  inter-
    53  cepted  by  the  mobile  phone  surveillance  device  or  system and the
    54  geographic limits of the order; and [(v)] (vi) a statement of the desig-
    55  nated crime or crimes to which the information likely to be obtained  by

        S. 5157                             3
     1  the use of the pen register [or], trap and trace device, or mobile phone
     2  surveillance device or system relates; and
     3    (c)  A statement of the period of time for which the authorization for
     4  the use of a pen register [or], a trap and trace  device,  or  a  mobile
     5  phone surveillance device or system is required; and
     6    (d)  A  statement  of  the facts concerning all previous applications,
     7  known to the applicant, for an order authorizing the use of a pen regis-
     8  ter [or], a trap and trace device, or a mobile phone surveillance device
     9  or system involving any of the same persons or facilities  specified  in
    10  the application, and the action taken by the justice on each such appli-
    11  cation.
    12    3. Allegations of fact in the application may be based either upon the
    13  personal  knowledge  of the applicant or upon information and belief. If
    14  the applicant personally knows the facts alleged, it must be so  stated.
    15  If  the  facts stated in the application are derived in whole or in part
    16  from the statements of persons other than the applicant, the sources  of
    17  such facts must be either disclosed or described.
    18    § 6. Section 705.20 of the criminal procedure law, as added by chapter
    19  744 of the laws of 1988, is amended to read as follows:
    20  § 705.20 Orders  authorizing  the use of a pen register [or], a trap and
    21             trace device,  or  a  mobile  phone  surveillance  device  or
    22             system; determination of application.
    23    1.  If  the  justice determines on the basis of the facts submitted by
    24  the applicant that grounds exist for the issue of an  order  authorizing
    25  the  use  of  a  pen register [or], a trap and trace device, or a mobile
    26  phone surveillance device or system pursuant to section 705.10  of  this
    27  article,  the  justice  shall  grant  the application and issue an order
    28  authorizing the use of a pen register [or], a trap and trace device,  or
    29  a  mobile phone surveillance device or system, in accordance with subdi-
    30  vision three of this section.
    31    2. If the application does not conform to section 705.15 of this arti-
    32  cle, or if the justice is not satisfied that grounds exist for the issu-
    33  ance of an order authorizing the use of a pen register [or], a trap  and
    34  trace  device,  or  a  mobile  phone  surveillance device or system, the
    35  application must be denied.
    36    3. An order issued under this section must contain:
    37    (a) the name of the applicant, date of issuance, and the  subscription
    38  and title of the issuing justice; and
    39    (b)  the  identity,  if  known,  of the person to whom is leased or in
    40  whose name is listed the telephone line, or mobile phone line  to  which
    41  the  pen  register [or], trap and trace device, or mobile phone surveil-
    42  lance device or system is to be attached; and
    43    (c) the identity, if known, of the person who is the  subject  of  the
    44  criminal investigation; and
    45    (d)  the  number and, if known, the physical location of the telephone
    46  line to which the pen register  or  trap  and  trace  device  is  to  be
    47  attached  and,  in  the  case of a trap and trace device or mobile phone
    48  surveillance device, the geographic limits of  the  trap  and  trace  or
    49  mobile phone surveillance order; and
    50    (e)  a statement of the designated crime or crimes to which the infor-
    51  mation likely to be obtained by the pen register [or],  trap  and  trace
    52  device, or mobile phone surveillance device or system relates.
    53    4.  An  order issued under this section shall direct, upon the request
    54  of the applicant, the furnishing of information, facilities, and techni-
    55  cal assistance necessary to accomplish the installation or  use  of  the

        S. 5157                             4
     1  pen  register  [or], trap and trace device, or mobile phone surveillance
     2  device or system under section 705.25 of this article.
     3    § 7. Section 705.25 of the criminal procedure law, as added by chapter
     4  744 of the laws of 1988, is amended to read as follows:
     5  § 705.25 Pen  register  [or],  trap  and  trace  device, or mobile phone
     6             surveillance device or system orders; time period and  exten-
     7             sions.
     8    1. An order issued under this section shall authorize the installation
     9  and use of a pen register or a trap and trace device for a period not to
    10  exceed sixty days.
    11    2. Extensions of such an order may be granted, but only upon an appli-
    12  cation  for  an  order under section 705.05 of this article and upon the
    13  judicial finding required by subdivision one of section 705.10  of  this
    14  article.    The  period of extension shall be for a period not to exceed
    15  sixty days.
    16    3. No mobile phone surveillance order may  authorize  or  approve  the
    17  interception  of  any communication for any period longer than is neces-
    18  sary to achieve the objective of the  authorization,  or  in  any  event
    19  longer  than thirty days. Such thirty day period shall begin on the date
    20  designated in the order as the effective date.  Extensions  of  such  an
    21  order  may  be  granted, but only upon an application for an order under
    22  section 705.05 of this article and upon the judicial finding required by
    23  subdivision one of section 705.10 of this article. The period of  exten-
    24  sion shall be for a period not to exceed thirty days.
    25    § 8. Section 705.30 of the criminal procedure law, as added by chapter
    26  744 of the laws of 1988, is amended to read as follows:
    27  § 705.30 Nondisclosure  of  existence  of  pen register [or], a trap and
    28             trace device,  or  a  mobile  phone  surveillance  device  or
    29             system.
    30    An  order  authorizing  or approving the installation and use of a pen
    31  register [or], a trap and trace device, or a mobile  phone  surveillance
    32  device or system shall direct that:
    33    1. the order be sealed until otherwise ordered by the court; and
    34    2.  the person owning or leasing the line to which the pen register or
    35  a trap and trace device is attached, the service provider of the  mobile
    36  phone to which the mobile phone surveillance device or system is identi-
    37  fying,  tracking  or  locating,  or who has been ordered by the court to
    38  provide assistance to the applicant, not disclose the existence  of  the
    39  pen  register  [or], trap and trace device, or mobile phone surveillance
    40  device or system or the existence of the  investigation  to  the  listed
    41  subscriber, or to any other person, unless or until otherwise ordered by
    42  the court.
    43    § 9. Subdivision 1 of section 700.05 of the criminal procedure law, as
    44  amended  by  chapter  744  of  the  laws  of 1988, is amended to read as
    45  follows:
    46    1. "Eavesdropping" means  "wiretapping",  "mechanical  overhearing  of
    47  conversation," or the "intercepting or accessing of an electronic commu-
    48  nication",  as  those  terms  are defined in section 250.00 of the penal
    49  law, but does not include the use of a pen register [or], trap and trace
    50  device, or a mobile phone surveillance device or system when  authorized
    51  pursuant to article 705 of this chapter.
    52    §  10.  This act shall take effect on the ninetieth day after it shall
    53  have become a law.
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