Bill Text: NY A01895 | 2017-2018 | General Assembly | Introduced


Bill Title: Relates to creating the New York electronic communications privacy act; relates to the search and seizure of electronic devices and electronic communications.

Spectrum: Partisan Bill (Democrat 24-0)

Status: (Introduced) 2017-01-13 - referred to codes [A01895 Detail]

Download: New_York-2017-A01895-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          1895
                               2017-2018 Regular Sessions
                   IN ASSEMBLY
                                    January 13, 2017
                                       ___________
        Introduced  by  M.  of A. DINOWITZ, RODRIGUEZ, GOTTFRIED, GALEF, GJONAJ,
          JOYNER, TITONE, RICHARDSON, MOSLEY, ABINANTI, QUART -- Multi-Sponsored
          by -- M. of A.   COOK, DAVILA,  ENGLEBRIGHT,  FARRELL,  GLICK,  RAMOS,
          ROZIC, SKARTADOS -- read once and referred to the Committee on Codes
        AN  ACT to amend the criminal procedure law, in relation to establishing
          the New York electronic communications privacy act ("NYECPA")
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section 1. The criminal procedure law is amended by adding a new arti-
     2  cle 695 to read as follows:
     3                                 ARTICLE 695
     4           SEARCH AND SEIZURE OF ELECTRONIC DEVICES AND ELECTRONIC
     5                               COMMUNICATIONS
     6  Section 695.05 Search  and  seizure of electronic devices and electronic
     7                   communications; definitions.
     8          695.10 Search and seizure of electronic devices  and  electronic
     9                   communications; in general.
    10          695.15 Search  and  seizure of electronic devices and electronic
    11                   communications; in an emergency.
    12          695.20 Search and seizure of electronic devices  and  electronic
    13                   communications; when evidence can be suppressed.
    14          695.25 Search  and  seizure of electronic devices and electronic
    15                   communications; annual report.
    16  § 695.05 Search and seizure of electronic devices and electronic  commu-
    17             nications; definitions.
    18    As used in this article, the following definitions shall apply:
    19    1. "Adverse result" means any of the following:
    20    (a) danger to the life or physical safety of an individual;
    21    (b) flight from prosecution;
    22    (c) destruction of or tampering with evidence;
    23    (d) intimidation of potential witnesses; or
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03787-01-7

        A. 1895                             2
     1    (e) serious jeopardy to an investigation.
     2    2.  "Authorized  possessor" means the person in possession of an elec-
     3  tronic device when that person is the owner of the device  or  has  been
     4  authorized to possess the device by the owner of the device.
     5    3.   "Electronic  communication"  means  the  transmission  of  signs,
     6  signals, writings, images, sounds, data, or intelligence of  any  nature
     7  in whole or in part by a wire, radio, electromagnetic, photoelectric, or
     8  photo-optical system.
     9    4. "Electronic communication information" means information related to
    10  an  electronic  communication  or the use of an electronic communication
    11  service including, but not limited to the contents, sender,  recipients,
    12  or  format  of  an  electronic communication; the precise or approximate
    13  location of the sender or recipients of an electronic  communication  at
    14  any  time during such communication; the time or date such communication
    15  was created, sent, or received and information pertaining to an individ-
    16  ual or device involved in the communication including but not limited to
    17  an internet protocol address. Electronic communication information  does
    18  not  include  subscriber information as defined in this article and does
    19  not include information in the public domain.
    20    5. "Electronic communication service" means a  service  that  provides
    21  subscribers  to  or users of such service the ability to send or receive
    22  an electronic communication as defined  in  this  article,  including  a
    23  service  that  acts as an intermediary in the transmission of electronic
    24  communications, or that stores electronic communication information.
    25    6. "Electronic device" means a device that stores, generates, or tran-
    26  smits information in electronic form.
    27    7. "Electronic device information"  means  information  stored  in  or
    28  generated  through  the  operation  of  an  electronic device, including
    29  information related to the location of such device at any time.
    30    8. "Electronic information" means electronic communication information
    31  or electronic device information.
    32    9. "Law enforcement agency" means any agency which is empowered by law
    33  to conduct an investigation or to make an arrest for  an  offense  under
    34  the  penal law, and an agency which is authorized by law to prosecute or
    35  participate in the prosecution of an offense under the penal law.
    36    10.  "Law  enforcement  officer"  means  any  public  servant  who  is
    37  empowered by law to conduct an investigation of or to make an arrest for
    38  an  offense  under  the penal law, and any attorney authorized by law to
    39  prosecute or participate in the prosecution  of  an  offense  under  the
    40  penal law.
    41    11.  "Location information" means information regarding the general or
    42  specific location of an electronic device.
    43    12. "Service provider" means a person or entity that provides an elec-
    44  tronic communication service.
    45    13. "Specific consent"  means  consent  provided  directly  to  a  law
    46  enforcement  agency  or  law  enforcement  officer  seeking  information
    47  regarding an electronic communication,  including  but  not  limited  to
    48  circumstances in which a law enforcement agency or law enforcement offi-
    49  cer  is  the addressee or intended recipient or a member of the intended
    50  audience for such communication.
    51    14. "Subscriber information" means the name, street address, telephone
    52  number, email address, or similar  contact  information  provided  by  a
    53  subscriber  to  the service provider in order to establish or maintain a
    54  communication  channel  or  an  account  for  electronic   communication
    55  services,  as  well  as  a  subscriber identifier or account number, the

        A. 1895                             3
     1  period of time in which the subscriber receives service; and  the  types
     2  of services used by a user of or subscriber to a service provider.
     3  § 695.10 Search  and seizure of electronic devices and electronic commu-
     4             nications; in general.
     5    1. Except as provided in this section, a law enforcement agency or law
     6  enforcement officer shall not:
     7    (a) compel, induce or offer incentives for the production of or access
     8  to electronic communication information from a service provider;
     9    (b) compel the production of or access to electronic  device  informa-
    10  tion  from  any  person or entity other than the authorized possessor of
    11  the device; or
    12    (c) access electronic device information by means of  physical  inter-
    13  action or electronic communication with the electronic device.
    14    2.  A law enforcement agency or law enforcement officer may compel the
    15  production of or access to electronic communication information  from  a
    16  service  provider,  or  compel the production of or access to electronic
    17  device information from any person or entity other than  the  authorized
    18  possessor of the device only under the following circumstances:
    19    (a)  pursuant  to  a  warrant  issued  in  accordance with article six
    20  hundred ninety of this title and subject to  subdivision  four  of  this
    21  section, unless the law enforcement agency or law enforcement officer is
    22  required under section 250.00 of the penal law and article seven hundred
    23  of  this  title  to  obtain  a  warrant issued pursuant to article seven
    24  hundred of this title; or
    25    (b) pursuant to a warrant issued  in  accordance  with  article  seven
    26  hundred of this title.
    27    3.  A  law  enforcement  agency or law enforcement officer may access,
    28  without consent, as provided in this section, electronic device informa-
    29  tion by means of physical interaction or electronic  communication  with
    30  the device only as follows:
    31    (a) pursuant to a warrant in accordance with article six hundred nine-
    32  ty of this title and subject to subdivision four of this section, unless
    33  the  law enforcement agency or law enforcement officer is required under
    34  section 250.00 of the penal law and article seven hundred of this  title
    35  to  obtain  a  warrant  issued pursuant to article seven hundred of this
    36  title;
    37    (b) pursuant to a warrant issued  in  accordance  with  article  seven
    38  hundred of this title;
    39    (c)  with  the  specific  consent  of  the authorized possessor of the
    40  device;
    41    (d) with the specific consent of the owner of the  device,  only  when
    42  the device has been reported as lost or stolen; or
    43    (e)  if the law enforcement agency or law enforcement officer, in good
    44  faith, believes the device to be lost, stolen,  or  abandoned,  provided
    45  that  the law enforcement agency or law enforcement officer shall access
    46  electronic device information only for  the  purpose  of  attempting  to
    47  identify,  verify,  or  contact the owner or authorized possessor of the
    48  device.
    49    4. Any warrant for electronic information shall:
    50    (a) describe with particularity the information to be seized by speci-
    51  fying the time periods for which such  information  is  sought  and,  as
    52  appropriate  and  reasonable,  the  target  individuals or accounts, the
    53  applications or services covered, and the types of  information  sought;
    54  and
    55    (b)  comply  with  all applicable provisions of state and federal law,
    56  including such provisions that prohibit  or  limit  the  use  of  search

        A. 1895                             4
     1  warrants,  or  that  impose additional requirements, beyond the scope of
     2  this article, regarding search warrants.
     3    5.  A  service  provider  may voluntarily disclose electronic communi-
     4  cation information or subscriber information when that disclosure is not
     5  otherwise prohibited by this article or by other provisions of state law
     6  or by federal law.
     7    6. A law enforcement agency or law enforcement officer  that  receives
     8  electronic  communication  information  provided  voluntarily shall seal
     9  that information within ninety days and access to the information  shall
    10  be prohibited except in one or more of the following circumstances:
    11    (a)  a law enforcement officer or agency obtains specific consent from
    12  the sender or recipient of the  electronic  communications  about  which
    13  information has been disclosed; or
    14    (b)  a law enforcement officer or agency obtains a court order author-
    15  izing access to the electronic communication information. A court  shall
    16  issue  an  access  order  upon  the  same finding required for issuing a
    17  warrant pursuant to article six hundred ninety of the criminal procedure
    18  law and subject to subdivision four of this section.
    19    (c) information retained by a law enforcement officer or agent that is
    20  subject to this provision shall not be shared with:
    21    (i) persons or entities that do not agree to  limit  the  use  of  the
    22  provided  information to those purposes identified in the court authori-
    23  zation; and
    24    (ii) persons or entities that:
    25    (A) are not legally obligated to destroy the provided information upon
    26  the expiration or rescindment of the court's retention order; or
    27    (B) do not voluntarily agree to destroy the provided information  upon
    28  the expiration or rescindment of the court's retention order.
    29    7.  A  law  enforcement agency or law enforcement officer that obtains
    30  electronic information pursuant to  an  emergency  involving  danger  of
    31  death  or  serious physical injury to a person, which requires access to
    32  the electronic information without delay, shall within three days  after
    33  obtaining  the electronic information file with the appropriate court an
    34  application for a warrant or order that authorizes access to such  elec-
    35  tronic  information,  or  a  motion  seeking  approval  of the emergency
    36  disclosures that sets forth the facts giving rise to the emergency,  and
    37  if  applicable,  a  request  supported by a sworn affidavit for an order
    38  delaying notification to the court as required under  paragraph  (a)  of
    39  subdivision  two  of  section  695.15  of  this article. The court shall
    40  promptly rule on such application or motion, and shall order the immedi-
    41  ate destruction of all information obtained, and immediate  notification
    42  to  the  targets of a warrant or emergency request, pursuant to subdivi-
    43  sion one of section 695.15 of this  article,  if  such  notice  has  not
    44  already  been  given, upon a finding that the facts did not give rise to
    45  an emergency, or upon a ruling that rejects the warrant or order  appli-
    46  cation on any other ground.
    47    8.  This  section  does  not  limit the authority of a law enforcement
    48  agency or law enforcement officer to use an administrative, grand  jury,
    49  trial, or civil discovery subpoena to do any of the following:
    50    (a)  require  an  originator,  addressee,  or intended recipient of an
    51  electronic communication to disclose any electronic communication infor-
    52  mation associated with that communication;
    53    (b) require an entity that provides electronic communications services
    54  to its officers, directors, employees, or  agents  for  the  purpose  of
    55  carrying out their duties, to disclose electronic communication informa-

        A. 1895                             5
     1  tion  associated with an electronic communication to or from an officer,
     2  director, employee, or agent of the entity; or
     3    (c) require a service provider to provide subscriber information.
     4    9.  This  section does not prohibit the intended recipient of an elec-
     5  tronic communication from  voluntarily  disclosing  electronic  communi-
     6  cation  information  concerning  that communication to a law enforcement
     7  agency or law enforcement officer.
     8    10. Nothing in this section shall be construed to expand any authority
     9  under state law to compel the production  of  or  access  to  electronic
    10  information.
    11  § 695.15 Search  and seizure of electronic devices and electronic commu-
    12             nications; in an emergency.
    13    1. Except as otherwise provided in this  section,  a  law  enforcement
    14  agency  or  law  enforcement officer that executes a warrant, or obtains
    15  electronic information in an emergency pursuant  to  section  695.10  of
    16  this  article, shall serve upon or deliver to the target of a warrant or
    17  emergency request by registered or first-class mail, electronic mail, or
    18  by other means reasonably calculated to  be  effective,  a  notice  that
    19  informs  the  recipient  that  information  about the recipient has been
    20  compelled or requested. Such notice shall state with reasonable  specif-
    21  icity  the  nature of the government investigation pursuant to which the
    22  information is sought. The notice shall include a copy of the warrant or
    23  a written statement setting forth facts giving rise  to  the  emergency.
    24  The  notice  shall be provided contemporaneously with the execution of a
    25  warrant, or, in the case  of  an  emergency,  within  three  days  after
    26  obtaining  the  electronic  information.    The target of the warrant is
    27  entitled to request a copy of the electronic information obtained in the
    28  same  form  it  was  received  upon  request.   Notice   shall   include
    29  instructions  for requesting copies and a law enforcement agency and law
    30  enforcement officer must provide copies of information obtained  in  the
    31  same  form within three days of receiving the request from the target of
    32  the warrant.
    33    2. (a) When a warrant is sought or electronic information is  obtained
    34  in  an  emergency under section 695.10 of this article, the law enforce-
    35  ment agency or law enforcement officer may submit a request to  a  court
    36  supported  by  a  sworn affidavit for an order delaying notification and
    37  prohibiting any party providing information  from  notifying  any  other
    38  party  that information has been sought. The court shall issue the order
    39  if the court determines that there is reason to believe  that  notifica-
    40  tion  may  have  an adverse result, but only for the period of time that
    41  the court finds there is reason to believe  that  the  notification  may
    42  have that adverse result, and not to exceed ninety days.
    43    (b)  The  court may grant extensions of the delay of up to ninety days
    44  each on the same grounds as provided in paragraph (a) of  this  subdivi-
    45  sion.
    46    (c)  Upon expiration of the period in which notification is delayed, a
    47  law enforcement agency or law enforcement officer shall serve  upon  the
    48  identified  targets  of  a warrant or deliver to those targets by regis-
    49  tered or first-class mail, electronic mail, or  other  means  reasonably
    50  calculated  to  be effective as specified by the court issuing the order
    51  authorizing delayed notification, a document that includes the  informa-
    52  tion  described in subdivision one of this section, along with a copy of
    53  all electronic information obtained in the same form  it  was  received,
    54  and  a statement of the grounds for the court's determination to grant a
    55  delay in notifying the individual.

        A. 1895                             6
     1    3. If there is no identified target of a warrant or emergency  request
     2  at  the time of its issuance, the law enforcement agency or law enforce-
     3  ment officer shall submit to the attorney general of this  state  within
     4  three  days of the execution of the warrant or issuance of the request a
     5  report  regarding  the  information  required in subdivision one of this
     6  section. If an order delaying notice is obtained pursuant to subdivision
     7  two of this section, the law enforcement agency or law enforcement offi-
     8  cer shall submit to the attorney general  upon  the  expiration  of  the
     9  period  of  delay of the notification a report regarding the information
    10  required in paragraph (c) of subdivision two of this section. The attor-
    11  ney general's office shall publish such reports on its internet  website
    12  within  ninety  days of receipt. The attorney general shall redact names
    13  and other personal identifying information from the reports.
    14    4. Except as otherwise provided in this section, nothing in this arti-
    15  cle shall prohibit or limit a service provider or any other  party  from
    16  disclosing information about any request or demand for electronic infor-
    17  mation.
    18  § 695.20 Search  and seizure of electronic devices and electronic commu-
    19             nications; when evidence can be suppressed.
    20    1. Persons who are party to or otherwise subject to a trial,  hearing,
    21  or  other  legal or administrative proceeding may move to suppress elec-
    22  tronic information obtained or retained in violation  of  this  article,
    23  the  United  States Constitution, State Constitution, the New York State
    24  Constitution or the provisions of the criminal procedure law. The motion
    25  shall be made and shall be subject to review by a  court  in  accordance
    26  with  the  procedures  set  forth  in  article seven hundred ten of this
    27  title.
    28    2. The attorney general of this state may commence a civil  action  to
    29  compel  a  law  enforcement  agency or law enforcement officer to comply
    30  with the provisions of this article.  This does not preclude  action  by
    31  an individual, service provider, or other recipient of a warrant, order,
    32  or other legal process that is inconsistent with this article.
    33    3.  An  individual,  service provider or other recipient of a warrant,
    34  order, or other legal process that is inconsistent  with  this  article,
    35  the  United  States Constitution, or the New York State Constitution may
    36  petition the issuing court to void or  modify  the  warrant,  order,  or
    37  process,  or  to  order  the  destruction  of information that is sought
    38  pursuant to such a warrant, order or other legal process.
    39    4. A state, territory or commonwealth of the United States and foreign
    40  and domestic corporations as well as officers, employees, and agents  of
    41  these  entities  shall not be subject to a cause of action for providing
    42  records, information,  facilities,  or  other  forms  of  assistance  in
    43  accordance  with the terms of a warrant, court order, statutory authori-
    44  zation, emergency certification, or wiretap  order  issued  pursuant  to
    45  this  article.    This does not preclude a cause of action for providing
    46  records, information, facilities, or other  forms  of  assistance  in  a
    47  manner that is inconsistent with this article.
    48  § 695.25 Search  and seizure of electronic devices and electronic commu-
    49             nications; annual report.
    50    1. A law enforcement agency or law enforcement  officer  that  obtains
    51  electronic communication information pursuant to this article shall make
    52  an  annual  report  to the attorney general of this state regarding such
    53  information. The report shall be made on or before February  first,  two
    54  thousand eighteen, and on February first of each year thereafter. To the
    55  extent  such  information can be reasonably determined, the report shall
    56  include the following:

        A. 1895                             7
     1    (a) the total number of times electronic  information  was  sought  or
     2  obtained pursuant to this article;
     3    (b)  the  number of times such information was sought or obtained, and
     4  the number of records obtained for each of the following categories  the
     5  types of electronic information:
     6    (i) electronic communication content;
     7    (ii) location information;
     8    (iii)  electronic  device information (not including location informa-
     9  tion); and
    10    (iv) other electronic communication information.
    11    (c) for each type of information identified in paragraph (b)  of  this
    12  subdivision:
    13    (i)  the number of times the information was sought or obtained pursu-
    14  ant to:
    15    (1) wiretap orders obtained pursuant to this article;
    16    (2) search warrants obtained pursuant to this article; and
    17    (3) emergency requests subject to subdivision eight of section  695.10
    18  of this article.
    19    (ii)  the  total number of individuals whose information was sought or
    20  obtained;
    21    (iii) the total number of instances in which information was sought or
    22  obtained that did not specify a target individual  from  whom  or  about
    23  whom the information was requested;
    24    (iv)  for  demands  or  requests  issued  upon a service provider, the
    25  number of such demands or requests  complied  with  in  full,  partially
    26  complied with, and not complied with;
    27    (v)  the  number of times notice to targeted individuals of a warrant,
    28  court order, statutory authorization, emergency certification, or  wire-
    29  tap  order  issued  pursuant to this article was delayed and the average
    30  length of the delay;
    31    (vi) the number of times records obtained pursuant to a warrant, court
    32  order, statutory  authorization,  emergency  certification,  or  wiretap
    33  order  issued pursuant to this article were shared with other government
    34  entities or any department or agency of the federal government, and  the
    35  agencies with which such records were shared;
    36    (vii)  the  average  period of time for which location information was
    37  obtained or received; and
    38    (viii) the number of instances in which electronic information  sought
    39  or obtained pursuant to this article was relevant to a criminal proceed-
    40  ing that led to a conviction.
    41    2.  On  or  before  April first, two thousand nineteen, and each April
    42  first thereafter, the attorney general's office  shall  publish  on  its
    43  internet  website  a  summary  aggregating  data related to each type of
    44  electronic communication identified in paragraphs (a), (b)  and  (c)  of
    45  subdivision one of this section by county.
    46    3.  Nothing  in  this  article  shall  prohibit  or restrict a service
    47  provider from producing an annual  report  summarizing  the  demands  or
    48  requests it receives under this article.
    49    § 2. This act shall take effect immediately.
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