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


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 28-0)

Status: (Introduced) 2017-06-20 - reported referred to rules [A01895 Detail]

Download: New_York-2017-A01895-Amended.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                         1895--A
                               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, ROSENTHAL, STECK,
          BLAKE, JENNE, LIFTON, SOLAGES, M. G. MILLER, WALKER -- Multi-Sponsored
          by -- M. of A.   COOK, DAVILA,  ENGLEBRIGHT,  FARRELL,  GLICK,  RAMOS,
          ROZIC,  SIMON, SKARTADOS -- read once and referred to the Committee on
          Codes -- committee discharged,  bill  amended,  ordered  reprinted  as
          amended and recommitted to said committee
        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;
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03787-03-7

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

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

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

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

        A. 1895--A                          6
     1  authorizing delayed notification, a document that includes the  informa-
     2  tion  described in subdivision one of this section, along with a copy of
     3  all electronic information obtained in the same form  it  was  received,
     4  and  a statement of the grounds for the court's determination to grant a
     5  delay in notifying the individual.
     6    3. If there is no identified target of a warrant or emergency  request
     7  at  the time of its issuance, the law enforcement agency or law enforce-
     8  ment officer shall submit to the attorney general of this  state  within
     9  three  days of the execution of the warrant or issuance of the request a
    10  report regarding the information required in  subdivision  one  of  this
    11  section. If an order delaying notice is obtained pursuant to subdivision
    12  two of this section, the law enforcement agency or law enforcement offi-
    13  cer  shall  submit  to  the  attorney general upon the expiration of the
    14  period of delay of the notification a report regarding  the  information
    15  required in paragraph (c) of subdivision two of this section. The attor-
    16  ney  general's office shall publish such reports on its internet website
    17  within ninety days of receipt. The attorney general shall  redact  names
    18  and other personal identifying information from the reports.
    19    4. Except as otherwise provided in this section, nothing in this arti-
    20  cle  shall  prohibit or limit a service provider or any other party from
    21  disclosing information about any request or demand for electronic infor-
    22  mation.
    23  § 695.20 Search and seizure of electronic devices and electronic  commu-
    24             nications; when evidence can be suppressed.
    25    1.  Persons who are party to or otherwise subject to a trial, hearing,
    26  or other legal or administrative proceeding may move to  suppress  elec-
    27  tronic  information  obtained  or retained in violation of this article,
    28  the United States Constitution, State Constitution, the New  York  State
    29  Constitution or the provisions of the criminal procedure law. The motion
    30  shall  be  made  and shall be subject to review by a court in accordance
    31  with the procedures set forth in  article  seven  hundred  ten  of  this
    32  title.
    33    2.  The  attorney general of this state may commence a civil action to
    34  compel a law enforcement agency or law  enforcement  officer  to  comply
    35  with  the  provisions of this article.  This does not preclude action by
    36  an individual, service provider, or other recipient of a warrant, order,
    37  or other legal process that is inconsistent with this article.
    38    3. An individual, service provider or other recipient  of  a  warrant,
    39  order, or other legal process may petition the issuing court to quash or
    40  modify  the  warrant,  order, or process, or to order the destruction of
    41  information that is sought pursuant to such a warrant,  order  or  other
    42  legal  process, on the basis that the warrant, order or process violates
    43  the United States Constitution, the New York State Constitution,  or  is
    44  otherwise  contrary  to  federal or state law. The warrant recipient may
    45  also move the quash  on  the  basis  that  the  information  or  records
    46  requested  are  unusually  voluminous  in nature or compliance with such
    47  order otherwise would cause  an  undue  burden  on  such  provider.  The
    48  court's  decision  to  grant or deny that petition, in whole or in part,
    49  filed under this paragraph is immediately appealable pursuant to section
    50  fifty-seven hundred one of the civil practice law and rules.
    51    4. A state, territory or commonwealth of the United States and foreign
    52  and domestic corporations as well as officers, employees, and agents  of
    53  these  entities  shall not be subject to a cause of action for providing
    54  records, information,  facilities,  or  other  forms  of  assistance  in
    55  accordance  with the terms of a warrant, court order, statutory authori-
    56  zation, emergency certification, or wiretap  order  issued  pursuant  to

        A. 1895--A                          7
     1  this  article.    This does not preclude a cause of action for providing
     2  records, information, facilities, or other  forms  of  assistance  in  a
     3  manner that is inconsistent with this article.
     4  § 695.25 Search  and seizure of electronic devices and electronic commu-
     5             nications; annual report.
     6    1. A law enforcement agency or law enforcement  officer  that  obtains
     7  electronic communication information pursuant to this article shall make
     8  an  annual  report  to the attorney general of this state regarding such
     9  information. The report shall be made on or before February  first,  two
    10  thousand eighteen, and on February first of each year thereafter. To the
    11  extent  such  information can be reasonably determined, the report shall
    12  include the following:
    13    (a) the total number of times electronic  information  was  sought  or
    14  obtained pursuant to this article;
    15    (b)  the  number of times such information was sought or obtained, and
    16  the number of records obtained for each of the following categories  the
    17  types of electronic information:
    18    (i) electronic communication content;
    19    (ii) location information;
    20    (iii)  electronic  device information (not including location informa-
    21  tion); and
    22    (iv) other electronic communication information.
    23    (c) for each type of information identified in paragraph (b)  of  this
    24  subdivision:
    25    (i)  the number of times the information was sought or obtained pursu-
    26  ant to:
    27    (1) wiretap orders obtained pursuant to this article;
    28    (2) search warrants obtained pursuant to this article; and
    29    (3) emergency requests subject to subdivision eight of section  695.10
    30  of this article.
    31    (ii)  the  total number of individuals whose information was sought or
    32  obtained;
    33    (iii) the total number of instances in which information was sought or
    34  obtained that did not specify a target individual  from  whom  or  about
    35  whom the information was requested;
    36    (iv)  for  demands  or  requests  issued  upon a service provider, the
    37  number of such demands or requests  complied  with  in  full,  partially
    38  complied with, and not complied with;
    39    (v)  the  number of times notice to targeted individuals of a warrant,
    40  court order, statutory authorization, emergency certification, or  wire-
    41  tap  order  issued  pursuant to this article was delayed and the average
    42  length of the delay;
    43    (vi) the number of times records obtained pursuant to a warrant, court
    44  order, statutory  authorization,  emergency  certification,  or  wiretap
    45  order  issued pursuant to this article were shared with other government
    46  entities or any department or agency of the federal government, and  the
    47  agencies with which such records were shared;
    48    (vii)  the  average  period of time for which location information was
    49  obtained or received; and
    50    (viii) the number of instances in which electronic information  sought
    51  or obtained pursuant to this article was relevant to a criminal proceed-
    52  ing that led to a conviction.
    53    2.  On  or  before  April first, two thousand nineteen, and each April
    54  first thereafter, the attorney general's office  shall  publish  on  its
    55  internet  website  a  summary  aggregating  data related to each type of

        A. 1895--A                          8
     1  electronic communication identified in paragraphs (a), (b)  and  (c)  of
     2  subdivision one of this section by county.
     3    3.  Nothing  in  this  article  shall  prohibit  or restrict a service
     4  provider from producing an annual  report  summarizing  the  demands  or
     5  requests it receives under this article.
     6    § 2. This act shall take effect immediately.
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