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.
LBD08092-01-7
A. 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.
