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]
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. LBD03787-01-7A. 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, theA. 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 searchA. 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.