S04914 Summary:

BILL NOS04914A
 
SAME ASSAME AS A07655
 
SPONSORRANZENHOFER
 
COSPNSR
 
MLTSPNSR
 
Amd Art 705 head, SS705.00, 705.05, 705.10, 705.15, 705.20, 705.25, 705.30 & 700.05, CP L
 
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.
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S04914 Actions:

BILL NOS04914A
 
04/23/2015REFERRED TO CODES
05/08/2015AMEND AND RECOMMIT TO CODES
05/08/2015PRINT NUMBER 4914A
01/06/2016REFERRED TO CODES
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S04914 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         4914--A
 
                               2015-2016 Regular Sessions
 
                    IN SENATE
 
                                     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    § 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    § 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  § 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    § 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  § 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    § 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  § 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    § 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  § 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    § 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  § 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    § 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  § 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    § 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    §  10.  This act shall take effect on the ninetieth day after it shall
    53  have become a law.
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