NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8093A
TITLE OF BILL: An act to amend the general business law, in relation
to the manufacture and sale of smartphones that are capable of being
decrypted and unlocked by the manufacturer
PURPOSE OR IDEA OF GENERAL BILL:
Recent technological advances have the potential to greatly embolden
online criminals, providing new methods for abusers to avoid detection.
The United States Attorney General, the director of the Federal Bureau
of Investigation, and others have severely criticized the efforts of
smartphone manufacturers to keep evidence immune from lawful process.
Criticism, however, is not enough.
In some cases, perpetrators take advantage of encryption and anonymizing
technology to conceal contraband materials and disguise their locations.
Andrew Weissmann, a former FBI general counsel, has publically called
the use of such encryption technology outrageous. According to his
analysis, even a judge's decision that there is probable cause to
suspect a crime has been committed won't get Apple or Google to help
retrieve potential evidence. In essence these companies are announcing
to criminals, 'use this device.'
Justice Department officials have said that if the new systems work as
advertised, they will make it virtually impossible to solve some cases,
as the companies have promised customers the equivalent of a house that
can't be searched, or a car trunk that could never be opened. Ronald
Hosko, former head of the FBI Criminal Investigations Division has
asserted that the level of privacy described by Apple and Google is
"wonderful until it's your kid who is kidnapped and being abused, and
because of the technology, we can't get to them. Who's going to get
lost because of this, and we're not going to crack the case?"
Smartphone companies benefit immeasurably from the laws protecting
intellectual property, as well as from extensive federal regulation.
There is no reason criminals should also benefit, and they will, as
people will be defrauded or threatened, and terrorists will use these
encrypted devices to plot their next attack over FaceTime. The safety of
the citizenry calls for a legislative solution, and a solution is easily
at hand. Enacting this bill would penalize those who would sell smart-
phones that are beyond the reach of law enforcement. If enacted, this
bill would provide a significant deterrent to such sellers, and there-
fore would discourage the companies from continuing to provide such
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 amends the general business law by adding a new section 399-k
1. Provides definitions
2. Establishes that any smartphone manufactured after January I, 2016
and sold or leased in New York must be capable of being decrypted by its
3. Establishes the penalty to those who knowingly sell or lease smart-
phones that cannot be decrypted or unlocked by the manufacturer, and
provides that sellers and lessors are prohibited from passing any
portion of penalty costs on to customers.
4. Establishes parameters for degrees of liability contingent on
manufacturer awareness and approval when a smartphone that has been sold
or leased is encrypted by its owner or lessee.
5. Establishes that the power to enforce this legislation by civil suit
rests only with the Attorney General and the district attorney repres-
enting the county in which such violation has occurred.
Section 2 establishes the effective date
Digital evidence plays a crucial role in the vast majority of criminal
cases across our state, and indeed, across the nation. Because so many
people put extensive information on their smart-phones and hand-held
devices, those devices may contain photos, texts, voice messages, or
emails that will constitute relevant evidence in virtually every kind of
case. Material from smartphones has been used as key evidence to prose-
cute murders, rapes, kidnappings, fraud, and larceny, among other
For law enforcement to access the contents of a smartphone or similar
device, they typically need and obtain a search warrant. It should be
noted that a search warrant cannot be issued unless the applicant demon-
strates, to a judge, that there is both probable cause to believe a
crime has been committed and probable cause to believe the device
contains evidence of that crime. If a smartphone is protected by a
passcode, however, then even though the search warrant gives the legal
right to access the contents of the phone, the material on the phone
cannot be reviewed, as law enforcement would be unable to get through
Historically, in such instances law enforcement has been able to seek
the aid of the mobile operating system providers. Upon our presentation
to them of the warrant, these providers have been able to unlock the
phones, and provide the information on the phone that was responsive the
In the past few months, companies have deliberately designed software,
entire operating systems, and mobile devices such that they cannot
unlock passcode-protected phones. The companies have touted this devel-
opment, explicitly advertising their inability to comply with lawful
government requests. As a consequence, the search warrant becomes a
nullity, because even law enforcement officers possessing valid search
warrants or court orders cannot access the contents of passcode-protect-
ed smartphones. In other words, criminals using passcode-protected
devices have been granted license to evade a lawful order of a court and
are thus quite literally, protected in their criminal endeavors.
It is as if the police get a search warrant for a safe deposit box at a
bank because they have reason to believe that the safe deposit box has
evidence of a crime - but they cannot open the box because the bank has
thrown away its own key. Indeed, this situation is even worse because
whereas a safe deposit box can, ultimately, be opened by force, a
passcode-protected smartphone is virtually impregnable, unless the
companies maintain the ability to open the phones that it manufactures.
Although the companies tout their new software as a boon for their
users' privacy, users' privacy is adequately protected by the Fourth
Amendment, specifically the requirement that a judge or magistrate that
is a neutral party - issue a search warrant only upon a showing of prob-
able cause that the phone will contain evidence of a crime.
The fact is that, although the new software may enhance privacy for some
users, it severely hampers law enforcement's ability to aid victims. All
of the evidence contained in smartphones and similar devices will be
lost to law enforcement, so long as the criminals take the precaution of
protecting their devices with passcodes. Of course they will do so.
Simply stated, passcode-protected devices render lawful court orders
meaningless and encourage criminals to act with impunity.
New York can and should lead the nation in protecting its citizens, and
in responding to the misguided and dangerous attempts by digital device
manufacturers to turn digital devices into virtual safes that, being
beyond the reach of law enforcement, are havens for criminals. Revela-
tions in the recent past about NSA surveillance and similar government
intrusions on privacy have made people acutely aware of threats to their
privacy. The goal of this bill is not to limit peoples' privacy.
Peoples' privacy is protected by the warrant requirement, as it always
has been. This bill would help to protect all New Yorkers.
PRIOR LEGISLATIVE HISTORY:
This act shall take effect immediately.
STATE OF NEW YORK
2015-2016 Regular Sessions
June 8, 2015
Introduced by M. of A. TITONE, MOSLEY -- read once and referred to the
Committee on Consumer Affairs and Protection -- recommitted to the
Committee on Consumer Affairs and Protection in accordance with Assem-
bly Rule 3, sec. 2 -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
AN ACT to amend the general business law, in relation to the manufacture
and sale of smartphones that are capable of being decrypted and
unlocked by the manufacturer
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The general business law is amended by adding a new section
2 399-k to read as follows:
3 § 399-k. Smartphones. 1. For the purposes of this section, the follow-
4 ing terms shall have the following meanings:
5 (a) "Smartphone" means a cellular radio telephone or other mobile
6 voice communications handset device that includes the following
8 i. Utilizes a mobile operating system.
9 ii. Possesses the capability to utilize mobile software applications,
10 access and browse the Internet, utilize text messaging, utilize digital
11 voice service, and send and receive email.
12 iii. Has wireless network connectivity.
13 iv. Is capable of operating on a long-term evolution network or
14 successor wireless data network communication standards.
15 (b) "Sold in New York," or any variation thereof, means that the
16 smartphone is sold at retail from a location within the state, or the
17 smartphone is sold and shipped to an end-use consumer at an address
18 within the state. "Sold in New York" does not include a smartphone that
19 is resold in the state on the secondhand market or that is consigned and
20 held as collateral on a loan.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
 is old law to be omitted.
A. 8093--A 2
1 (c) "Leased in New York," or any variation thereof, means that the
2 smartphone is contracted for a specified period of time to an end-use
3 consumer at an address within the state.
4 2. Any smartphone that is manufactured on or after January first, two
5 thousand seventeen, and sold or leased in New York, shall be capable of
6 being decrypted and unlocked by its manufacturer or its operating system
8 3. The sale or lease in New York of a smartphone manufactured on or
9 after January first, two thousand seventeen that is not capable of being
10 decrypted and unlocked by its manufacturer or its operating system
11 provider shall subject the seller or lessor to a civil penalty of two
12 thousand five hundred dollars for each smartphone sold or leased if it
13 is demonstrated that the seller or lessor of the smartphone knew at the
14 time of the sale or lease that the smartphone was not capable of being
15 decrypted and unlocked by its manufacturer or its operating system
16 provider. No seller or lessor who pays the civil penalty may pass any
17 portion of that penalty on to any purchaser of smartphones by raising
18 the sales or lease price of smartphones.
19 4. The retail sale or lease of a smartphone manufactured on or after
20 January first, two thousand seventeen that is not capable of being
21 decrypted and unlocked by its manufacturer or its operating system
22 provider shall not result in liability to the seller or lessor if the
23 inability of the manufacturer and operating system provider to decrypt
24 and unlock the smartphone is the result of actions taken by any person
25 or entity other than the manufacturer, the operating system provider,
26 the seller, or the lessor so long as such actions were unauthorized by
27 the manufacturer, the operating system provider, the seller, or the
28 lessor unless at the time of sale or lease the seller or lessor had
29 received notification that the manufacturer and operating system provid-
30 er were unable to decrypt and unlock smartphones that had been acted
31 upon in the manner described above.
32 5. A civil suit to enforce this section may be brought by the follow-
33 ing parties and none others: (a) the Attorney General, for any sale or
34 lease of a smartphone in New York, and (b) the district attorney for any
35 sale or lease of a smartphone in the county represented by the district
36 attorney, provided, however that the seller or lessor may be subject to
37 not more than a single penalty for each sale or lease of a smartphone.
38 § 2. This act shall take effect immediately.