Bill Text: NY A03071 | 2017-2018 | General Assembly | Introduced
Bill Title: Relates to defining cell site simulator devices and including them in the definition of eavesdropping.
Sponsorship: Partisan Bill (Democrat 1)
Status: (Introduced - Dead) 2018-01-03 - referred to codes [A03071 Detail]
Download: New_York-2017-A03071-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 3071 2017-2018 Regular Sessions IN ASSEMBLY January 26, 2017 ___________ Introduced by M. of A. RYAN -- read once and referred to the Committee on Codes AN ACT to amend the criminal procedure law, in relation to cell site simulator devices The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivisions 1 and 3 of section 700.05 of the criminal 2 procedure law, as amended by chapter 744 of the laws of 1988, are 3 amended and two new subdivisions 11 and 12 are added to read as follows: 4 1. "Eavesdropping" means "wiretapping", "mechanical overhearing of 5 conversation," or the "intercepting or accessing of an electronic commu- 6 nication", as those terms are defined in section 250.00 of the penal 7 law, but does not include the use of a pen register or trap and trace 8 device when authorized pursuant to article 705 of this chapter. The 9 term "eavesdropping" includes the use of a cell site simulator device. 10 3. "Intercepted communication" means (a) a telephonic or telegraphic 11 communication which was intentionally overheard or recorded by a person 12 other than the sender or receiver thereof, without the consent of the 13 sender or receiver, by means of any instrument, device or equipment, or 14 (b) a conversation or discussion which was intentionally overheard or 15 recorded, without the consent of at least one party thereto, by a person 16 not present thereat, by means of any instrument, device or equipment; or 17 (c) an electronic communication which was intentionally intercepted or 18 accessed, as that term is defined in section 250.00 of the penal law, 19 including by use of a cell site simulator device. The term "contents," 20 when used with respect to a communication, includes any information 21 concerning the identity of the parties to such communications, and the 22 existence, substance, purport, or meaning of that communication. The 23 term "communication" includes conversation and discussion. 24 11. "Cell site simulator device" means a device that transmits or 25 receives radio waves for the purpose of conducting one or more of the EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD08092-01-7A. 3071 2 1 following operations: (a) identifying, locating, or tracking the move- 2 ments of a communications device; (b) intercepting, obtaining, access- 3 ing, or forwarding the communications, stored data, or metadata of a 4 communications device; (c) affecting the hardware or software operations 5 or functions of a communications device; (d) forcing transmissions from 6 or connections to a communications device; (e) denying a communications 7 device access to other communications devices, communications protocols, 8 or services; or (f) spoofing or simulating a communications device, cell 9 tower, cell site, or service, including, but not limited to, an interna- 10 tional mobile subscriber identity catcher or other invasive cell phone 11 or telephone surveillance or eavesdropping device that mimics a cell 12 phone tower and sends out signals to cause cell phones in the area to 13 transmit their locations, identifying information, and communications 14 content, or a passive interception device or digital analyzer that does 15 not send signals to a communications device under surveillance. 16 12. "Communications device" means any device that transmits or 17 receives radio waves, and is capable of sending or receiving communi- 18 cations. This definition includes, but is not limited to, cell phones, 19 aircards, tablets, and laptops. 20 § 2. Subdivision 2 of section 700.10 of the criminal procedure law, as 21 amended by chapter 744 of the laws of 1988, is amended to read as 22 follows: 23 2. No eavesdropping or video surveillance warrant may authorize or 24 approve the interception of any communication or the conducting of any 25 video surveillance for any period longer than is necessary to achieve 26 the objective of the authorization, or in any event longer than thirty 27 days, or for a warrant authorizing use of a cell site simulator device, 28 longer than seven days. Such thirty day or seven day period shall begin 29 on the date designated in the warrant as the effective date, which date 30 may be no later than ten days after the warrant is issued. 31 § 3. Paragraph (b) of subdivision 2 of section 700.20 of the criminal 32 procedure law, as amended by chapter 744 of the laws of 1988, is amended 33 and a new paragraph (g) is added to read as follows: 34 (b) A full and complete statement of the facts and circumstances 35 relied upon by the applicant, to justify his belief that an eavesdrop- 36 ping or video surveillance warrant should be issued, including (i) a 37 statement of facts establishing probable cause to believe that a partic- 38 ular designated offense has been, is being, or is about to be committed, 39 (ii) a particular description of the nature and location of the facili- 40 ties from which or the place where the communication is to be inter- 41 cepted or the video surveillance is to be conducted, to the extent known 42 for a warrant authorizing use of a cell site simulator device, (iii) a 43 particular description of the type of the communications sought to be 44 intercepted or of the observations sought to be made, and (iv) the iden- 45 tity of the person, if known, committing such designated offense and 46 whose communications are to be intercepted or who is to be the subject 47 of the video surveillance; and 48 (g) For an application for a warrant authorizing use of a cell site 49 simulator device, the application must specify: (i) the identity of the 50 person, if known, who possesses the device to be targeted by the cell 51 site simulator device, (ii) the telephone number or other unique 52 subscriber account number identifying the wire or electronic communi- 53 cations service account used by the device to be targeted by the cell 54 site simulator device and the identity of the person, if known, who is 55 subscribed to that account, (iii) the type of device, and the communi- 56 cations protocols being used by the device, to which the cell site simu-A. 3071 3 1 lator device is to be attached or used, (iv) the geographic area that 2 will be covered by the cell site simulator device, (v) all categories of 3 metadata, data, or information to be collected by the cell site simula- 4 tor device from the device to be targeted including, but not limited to, 5 call records and geolocation information, (vi) whether or not the cell 6 site simulator device will incidentally collect metadata, data, or 7 information from any parties or devices not specified in the warrant, 8 and if so, what categories of information or metadata will be collected, 9 and (vii) any disruptions to access or use of a communications or inter- 10 net access network that may be created by use of the cell site simulator 11 device. 12 § 4. Subdivisions 3 and 7 of section 700.30 of the criminal procedure 13 law, as amended by chapter 744 of the laws of 1988, are amended and two 14 new subdivisions 10 and 11 are added to read as follows: 15 3. The nature and location of the communications facilities as to 16 which, or the place where, authority to intercept or conduct video 17 surveillance is granted, to the extent known for a warrant authorizing 18 use of a cell site simulator device; and 19 7. A provision that the authorization to intercept or conduct video 20 surveillance shall be executed as soon as practicable, shall be 21 conducted in such a way as to minimize the interception of communi- 22 cations or the making of observations not otherwise subject to eaves- 23 dropping or video surveillance under this article, and must terminate 24 upon attainment of the authorized objective, or in any event in thirty 25 days, or in seven days for a warrant authorizing use of a cell site 26 simulator device; and 27 10. For an order authorizing use of a cell site simulator device, (i) 28 the identity of the person, if known, who possesses the device to be 29 targeted by the cell site simulator device, (ii) the telephone number or 30 other unique subscriber account number identifying the wire or electron- 31 ic communications service account used by the device to be targeted by 32 the cell site simulator device and the identity of the person, if known, 33 who is subscribed to that account, (iii) the type of device, and the 34 communications protocols being used by the device, to which the cell 35 site simulator device is to be attached or used, (iv) the geographic 36 area that will be covered by the cell site simulator device, (v) all 37 categories of metadata, data, or information to be collected by the cell 38 site simulator device from the device to be targeted including, but not 39 limited to, call records and geolocation information, (vi) whether or 40 not the cell site simulator device will incidentally collect metadata, 41 data, or information from any parties or devices not specified in the 42 warrant, and if so, what categories of information or metadata will be 43 collected, and (vii) any disruptions to access or use of a communi- 44 cations or internet access network that may be created by use of the 45 cell site simulator device; and 46 11. An order authorizing eavesdropping through use of a cell site 47 simulator device must include a provision directing that the law 48 enforcement agency (i) take all steps necessary to limit the collection 49 of any information or metadata to the target specified in the warrant, 50 (ii) take all steps necessary to permanently delete any information or 51 metadata collected from any party not specified in the applicable 52 warrant immediately following such collection and must not transmit, 53 use, or retain such information or metadata for any purpose whatsoever, 54 and (iii) delete any information or metadata collected from the target 55 specified in the warrant within thirty days if there is no longer proba-A. 3071 4 1 ble cause to support the belief that such information or metadata is 2 evidence of a crime. 3 § 5. Subdivision 3 of section 700.35 of the criminal procedure law, as 4 amended by chapter 744 of the laws of 1988, is amended to read as 5 follows: 6 3. The contents of any communication intercepted or of any observa- 7 tion made by any means authorized by this article must, if possible and 8 unless subject to deletion under subdivision eleven of section 700.30, 9 be recorded on tape or wire or other comparable device. The recording 10 of the contents of any such communication or observation must be done in 11 such way as will protect the recording from editing or other alter- 12 ations. 13 § 6. Section 700.40 of the criminal procedure law, as amended by chap- 14 ter 744 of the laws of 1988, is amended to read as follows: 15 § 700.40 Eavesdropping and video surveillance warrants; order of exten- 16 sion. 17 At any time prior to the expiration of an eavesdropping or video 18 surveillance warrant, the applicant may apply to the issuing justice, 19 or, if he is unavailable, to another justice, for an order of extension. 20 The period of extension shall be no longer than the justice deems neces- 21 sary to achieve the purposes for which it was granted and in no event 22 longer than thirty days, or seven days for a warrant authorizing use of 23 a cell site simulator device. The application for an order of extension 24 must conform in all respects to the provisions of section 700.20 and, in 25 addition, must contain a statement setting forth the results thus far 26 obtained from the interception, or a reasonable explanation of the fail- 27 ure to obtain such results. The provisions of sections 700.15 and 28 700.25 are applicable in the determination of such application. The 29 order of extension must conform in all respects to the provisions of 30 section 700.30. In the execution of such order of extension the 31 provisions of section 700.35 are applicable. 32 § 7. Subdivision 4 of section 710.10 of the criminal procedure law, as 33 amended by chapter 744 of the laws of 1988, is amended to read as 34 follows: 35 4. "Eavesdropping" means "wiretapping", "mechanical overhearing of a 36 conversation," or "intercepting or accessing of an electronic communi- 37 cation," as those terms are defined in section 250.00 of the penal law. 38 The term "eavesdropping" includes the use of a cell site simulator 39 device. 40 § 8. This act shall take effect immediately.
