Bill Text: NY S04914 | 2015-2016 | General Assembly | Amended
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) 2016-01-06 - REFERRED TO CODES [S04914 Detail]
Download: New_York-2015-S04914-Amended.html
S T A T E O F N E W Y O R K
________________________________________________________________________
4914--A
2015-2016 Regular Sessions
I N S E N A T E
April 23, 2015
___________
Introduced by Sen. RANZENHOFER -- read twice and ordered printed, and
when printed to be committed 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 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 S 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 S 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 S 705.05 Pen register [and], trap and trace AND MOBILE PHONE SURVEIL-
23 LANCE authorizations; in general.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10579-02-5
S. 4914--A 2
1 Under circumstances prescribed in this article, a justice may issue an
2 order authorizing the use of a pen register [or], a trap and trace
3 device, OR A MOBILE PHONE SURVEILLANCE DEVICE OR SYSTEM upon ex parte
4 application of an applicant who is authorized by law to investigate,
5 prosecute or participate in the prosecution of the designated crimes
6 which are the subject of the application.
7 S 4. Section 705.10 of the criminal procedure law, as added by chapter
8 744 of the laws of 1988, is amended to read as follows:
9 S 705.10 Orders authorizing the use of a pen register [or], a trap and
10 trace device, OR A MOBILE PHONE SURVEILLANCE DEVICE OR
11 SYSTEM; when issuable.
12 An order authorizing the use of a pen register [or], a trap and trace
13 device, OR A MOBILE PHONE SURVEILLANCE DEVICE OR SYSTEM may issue only:
14 1. Upon an appropriate application made in conformity with this arti-
15 cle; and
16 2. Upon a determination that an application sets forth specific, arti-
17 culable facts, warranting the applicant's reasonable suspicion that a
18 designated crime has been, is being, or is about to be committed and
19 demonstrating that the information likely to be obtained by use of a pen
20 register [or], trap and trace device, OR MOBILE PHONE SURVEILLANCE
21 DEVICE OR SYSTEM is or will be relevant to an ongoing criminal investi-
22 gation of such designated crime.
23 S 5. Section 705.15 of the criminal procedure law, as added by chapter
24 744 of the laws of 1988, is amended to read as follows:
25 S 705.15 Application for an order authorizing the use of a pen register
26 [or], a trap and trace device, OR A MOBILE PHONE SURVEIL-
27 LANCE DEVICE OR SYSTEM.
28 1. An ex parte application for an order or an extension of an order
29 authorizing the use of a pen register [or], a trap and trace device, OR
30 A MOBILE SURVEILLANCE DEVICE OR SYSTEM must be made to a justice in
31 writing, and must be subscribed and sworn to by the applicant.
32 2. The application must contain:
33 (a) The identity of the applicant and the identity of the law enforce-
34 ment agency conducting the investigation; and
35 (b) A statement of facts and circumstances sufficient to justify the
36 applicant's belief that an order authorizing the use of a pen register
37 [or], a trap and trace device, OR A MOBILE PHONE SURVEILLANCE DEVICE OR
38 SYSTEM should be issued, including (i) a statement of the specific facts
39 on the basis of which the applicant reasonably suspects that the desig-
40 nated crime has been, is being, or is about to be committed and demon-
41 strating that the information likely to be obtained by use of a pen
42 register [or], a trap and trace device, OR A MOBILE PHONE SURVEILLANCE
43 DEVICE OR SYSTEM is or will be relevant to an ongoing criminal investi-
44 gation of such designated offense, (ii) the identity, if known, of the
45 person to whom is leased or in whose name is listed the telephone line
46 to which the pen register or trap and trace device is to be attached,
47 (iii) the identity, if known, of the person who is the subject of the
48 criminal investigation, (iv) the number and, if known, the physical
49 location of the telephone line to which the pen register or trap and
50 trace device is to be attached and, in the case of a trap and trace
51 device, the geographic limits of the trap and trace order, (V) A PARTIC-
52 ULAR DESCRIPTION OF THE NATURE AND LOCATION OF THE FACILITIES FROM WHICH
53 OR THE PLACE WHERE THE COMMUNICATION IS TO BE INTERCEPTED AND A PARTIC-
54 ULAR DESCRIPTION OF THE TYPE OF THE COMMUNICATIONS SOUGHT TO BE INTER-
55 CEPTED BY THE MOBILE PHONE SURVEILLANCE DEVICE OR SYSTEM AND THE
56 GEOGRAPHIC LIMITS OF THE ORDER; and [(v)] (VI) a statement of the desig-
S. 4914--A 3
1 nated crime or crimes to which the information likely to be obtained by
2 the use of the pen register [or], trap and trace device, OR MOBILE PHONE
3 SURVEILLANCE DEVICE OR SYSTEM relates; and
4 (c) A statement of the period of time for which the authorization for
5 the use of a pen register [or], a trap and trace device, OR A MOBILE
6 PHONE SURVEILLANCE DEVICE OR SYSTEM is required; and
7 (d) A statement of the facts concerning all previous applications,
8 known to the applicant, for an order authorizing the use of a pen regis-
9 ter [or], a trap and trace device, OR A MOBILE PHONE SURVEILLANCE DEVICE
10 OR SYSTEM involving any of the same persons or facilities specified in
11 the application, and the action taken by the justice on each such appli-
12 cation.
13 3. Allegations of fact in the application may be based either upon the
14 personal knowledge of the applicant or upon information and belief. If
15 the applicant personally knows the facts alleged, it must be so stated.
16 If the facts stated in the application are derived in whole or in part
17 from the statements of persons other than the applicant, the sources of
18 such facts must be either disclosed or described.
19 S 6. Section 705.20 of the criminal procedure law, as added by chapter
20 744 of the laws of 1988, is amended to read as follows:
21 S 705.20 Orders authorizing the use of a pen register [or], a trap and
22 trace device, OR A MOBILE PHONE SURVEILLANCE DEVICE OR
23 SYSTEM; determination of application.
24 1. If the justice determines on the basis of the facts submitted by
25 the applicant that grounds exist for the issue of an order authorizing
26 the use of a pen register [or], a trap and trace device, OR A MOBILE
27 PHONE SURVEILLANCE DEVICE OR SYSTEM pursuant to section 705.10 of this
28 article, the justice shall grant the application and issue an order
29 authorizing the use of a pen register [or], a trap and trace device, OR
30 A MOBILE PHONE SURVEILLANCE DEVICE OR SYSTEM, in accordance with subdi-
31 vision three of this section.
32 2. If the application does not conform to section 705.15 of this arti-
33 cle, or if the justice is not satisfied that grounds exist for the issu-
34 ance of an order authorizing the use of a pen register [or], a trap and
35 trace device, OR A MOBILE PHONE SURVEILLANCE DEVICE OR SYSTEM, the
36 application must be denied.
37 3. An order issued under this section must contain:
38 (a) the name of the applicant, date of issuance, and the subscription
39 and title of the issuing justice; and
40 (b) the identity, if known, of the person to whom is leased or in
41 whose name is listed the telephone line, OR MOBILE PHONE LINE to which
42 the pen register [or], trap and trace device, OR MOBILE PHONE SURVEIL-
43 LANCE DEVICE OR SYSTEM is to be attached; and
44 (c) the identity, if known, of the person who is the subject of the
45 criminal investigation; and
46 (d) the number and, if known, the physical location of the telephone
47 line to which the pen register or trap and trace device is to be
48 attached and, in the case of a trap and trace device OR MOBILE PHONE
49 SURVEILLANCE DEVICE, the geographic limits of the trap and trace OR
50 MOBILE PHONE SURVEILLANCE order; and
51 (e) a statement of the designated crime or crimes to which the infor-
52 mation likely to be obtained by the pen register [or], trap and trace
53 device, OR MOBILE PHONE SURVEILLANCE DEVICE OR SYSTEM relates.
54 4. An order issued under this section shall direct, upon the request
55 of the applicant, the furnishing of information, facilities, and techni-
56 cal assistance necessary to accomplish the installation OR USE of the
S. 4914--A 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 S 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 S 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 S 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 S 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 S 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 S 10. This act shall take effect on the ninetieth day after it shall
53 have become a law.
