S05730 Summary:

BILL NOS05730
 
SAME ASNo Same As
 
SPONSORPARKER
 
COSPNSRHAMILTON
 
MLTSPNSR
 
Add Art 695 §§695.05 - 695.25, CP L
 
Relates to creating the New York electronic communications privacy act; relates to the search and seizure of electronic devices and electronic communications.
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S05730 Actions:

BILL NOS05730
 
04/27/2017REFERRED TO CODES
01/03/2018REFERRED TO CODES
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S05730 Committee Votes:

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S05730 Floor Votes:

There are no votes for this bill in this legislative session.
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S05730 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5730
 
                               2017-2018 Regular Sessions
 
                    IN SENATE
 
                                     April 27, 2017
                                       ___________
 
        Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
          printed to be committed to the Committee on Codes
 
        AN ACT to amend the criminal procedure law, in relation to  establishing
          the New York electronic communications privacy act ("NYECPA")
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. The criminal procedure law is amended by adding a new arti-
     2  cle 695 to read as follows:
     3                                 ARTICLE 695
     4           SEARCH AND SEIZURE OF ELECTRONIC DEVICES AND ELECTRONIC
     5                               COMMUNICATIONS
     6  Section 695.05 Search and seizure of electronic devices  and  electronic
     7                   communications; definitions.
     8          695.10 Search  and  seizure of electronic devices and electronic
     9                   communications; in general.
    10          695.15 Search and seizure of electronic devices  and  electronic
    11                   communications; in an emergency.
    12          695.20 Search  and  seizure of electronic devices and electronic
    13                   communications; when evidence can be suppressed.
    14          695.25 Search and seizure of electronic devices  and  electronic
    15                   communications; annual report.
    16  § 695.05 Search  and seizure of electronic devices and electronic commu-
    17             nications; definitions.
    18    As used in this article, the following definitions shall apply:
    19    1. "Adverse result" means any of the following:
    20    (a) danger to the life or physical safety of an individual;
    21    (b) flight from prosecution;
    22    (c) destruction of or tampering with evidence;
    23    (d) intimidation of potential witnesses; or
    24    (e) serious jeopardy to an investigation.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03787-01-7

        S. 5730                             2
 
     1    2. "Authorized possessor" means the person in possession of  an  elec-
     2  tronic  device  when  that person is the owner of the device or has been
     3  authorized to possess the device by the owner of the device.
     4    3.   "Electronic  communication"  means  the  transmission  of  signs,
     5  signals, writings, images, sounds, data, or intelligence of  any  nature
     6  in whole or in part by a wire, radio, electromagnetic, photoelectric, or
     7  photo-optical system.
     8    4. "Electronic communication information" means information related to
     9  an  electronic  communication  or the use of an electronic communication
    10  service including, but not limited to the contents, sender,  recipients,
    11  or  format  of  an  electronic communication; the precise or approximate
    12  location of the sender or recipients of an electronic  communication  at
    13  any  time during such communication; the time or date such communication
    14  was created, sent, or received and information pertaining to an individ-
    15  ual or device involved in the communication including but not limited to
    16  an internet protocol address. Electronic communication information  does
    17  not  include  subscriber information as defined in this article and does
    18  not include information in the public domain.
    19    5. "Electronic communication service" means a  service  that  provides
    20  subscribers  to  or users of such service the ability to send or receive
    21  an electronic communication as defined  in  this  article,  including  a
    22  service  that  acts as an intermediary in the transmission of electronic
    23  communications, or that stores electronic communication information.
    24    6. "Electronic device" means a device that stores, generates, or tran-
    25  smits information in electronic form.
    26    7. "Electronic device information"  means  information  stored  in  or
    27  generated  through  the  operation  of  an  electronic device, including
    28  information related to the location of such device at any time.
    29    8. "Electronic information" means electronic communication information
    30  or electronic device information.
    31    9. "Law enforcement agency" means any agency which is empowered by law
    32  to conduct an investigation or to make an arrest for  an  offense  under
    33  the  penal law, and an agency which is authorized by law to prosecute or
    34  participate in the prosecution of an offense under the penal law.
    35    10.  "Law  enforcement  officer"  means  any  public  servant  who  is
    36  empowered by law to conduct an investigation of or to make an arrest for
    37  an  offense  under  the penal law, and any attorney authorized by law to
    38  prosecute or participate in the prosecution  of  an  offense  under  the
    39  penal law.
    40    11.  "Location information" means information regarding the general or
    41  specific location of an electronic device.
    42    12. "Service provider" means a person or entity that provides an elec-
    43  tronic communication service.
    44    13. "Specific consent"  means  consent  provided  directly  to  a  law
    45  enforcement  agency  or  law  enforcement  officer  seeking  information
    46  regarding an electronic communication,  including  but  not  limited  to
    47  circumstances in which a law enforcement agency or law enforcement offi-
    48  cer  is  the addressee or intended recipient or a member of the intended
    49  audience for such communication.
    50    14. "Subscriber information" means the name, street address, telephone
    51  number, email address, or similar  contact  information  provided  by  a
    52  subscriber  to  the service provider in order to establish or maintain a
    53  communication  channel  or  an  account  for  electronic   communication
    54  services,  as  well  as  a  subscriber identifier or account number, the
    55  period of time in which the subscriber receives service; and  the  types
    56  of services used by a user of or subscriber to a service provider.

        S. 5730                             3
 
     1  § 695.10 Search  and seizure of electronic devices and electronic commu-
     2             nications; in general.
     3    1. Except as provided in this section, a law enforcement agency or law
     4  enforcement officer shall not:
     5    (a) compel, induce or offer incentives for the production of or access
     6  to electronic communication information from a service provider;
     7    (b)  compel  the production of or access to electronic device informa-
     8  tion from any person or entity other than the  authorized  possessor  of
     9  the device; or
    10    (c)  access  electronic device information by means of physical inter-
    11  action or electronic communication with the electronic device.
    12    2. A law enforcement agency or law enforcement officer may compel  the
    13  production  of  or access to electronic communication information from a
    14  service provider, or compel the production of or  access  to  electronic
    15  device  information  from any person or entity other than the authorized
    16  possessor of the device only under the following circumstances:
    17    (a) pursuant to a  warrant  issued  in  accordance  with  article  six
    18  hundred  ninety  of  this  title and subject to subdivision four of this
    19  section, unless the law enforcement agency or law enforcement officer is
    20  required under section 250.00 of the penal law and article seven hundred
    21  of this title to obtain a  warrant  issued  pursuant  to  article  seven
    22  hundred of this title; or
    23    (b)  pursuant  to  a  warrant  issued in accordance with article seven
    24  hundred of this title.
    25    3. A law enforcement agency or law  enforcement  officer  may  access,
    26  without consent, as provided in this section, electronic device informa-
    27  tion  by  means of physical interaction or electronic communication with
    28  the device only as follows:
    29    (a) pursuant to a warrant in accordance with article six hundred nine-
    30  ty of this title and subject to subdivision four of this section, unless
    31  the law enforcement agency or law enforcement officer is required  under
    32  section  250.00 of the penal law and article seven hundred of this title
    33  to obtain a warrant issued pursuant to article  seven  hundred  of  this
    34  title;
    35    (b)  pursuant  to  a  warrant  issued in accordance with article seven
    36  hundred of this title;
    37    (c) with the specific consent  of  the  authorized  possessor  of  the
    38  device;
    39    (d)  with  the  specific consent of the owner of the device, only when
    40  the device has been reported as lost or stolen; or
    41    (e) if the law enforcement agency or law enforcement officer, in  good
    42  faith,  believes  the  device to be lost, stolen, or abandoned, provided
    43  that the law enforcement agency or law enforcement officer shall  access
    44  electronic  device  information  only  for  the purpose of attempting to
    45  identify, verify, or contact the owner or authorized  possessor  of  the
    46  device.
    47    4. Any warrant for electronic information shall:
    48    (a) describe with particularity the information to be seized by speci-
    49  fying  the  time  periods  for  which such information is sought and, as
    50  appropriate and reasonable, the  target  individuals  or  accounts,  the
    51  applications  or  services covered, and the types of information sought;
    52  and
    53    (b) comply with all applicable provisions of state  and  federal  law,
    54  including  such  provisions  that  prohibit  or  limit the use of search
    55  warrants, or that impose additional requirements, beyond  the  scope  of
    56  this article, regarding search warrants.

        S. 5730                             4
 
     1    5.  A  service  provider  may voluntarily disclose electronic communi-
     2  cation information or subscriber information when that disclosure is not
     3  otherwise prohibited by this article or by other provisions of state law
     4  or by federal law.
     5    6.  A  law enforcement agency or law enforcement officer that receives
     6  electronic communication information  provided  voluntarily  shall  seal
     7  that  information within ninety days and access to the information shall
     8  be prohibited except in one or more of the following circumstances:
     9    (a) a law enforcement officer or agency obtains specific consent  from
    10  the  sender  or  recipient  of the electronic communications about which
    11  information has been disclosed; or
    12    (b) a law enforcement officer or agency obtains a court order  author-
    13  izing  access to the electronic communication information. A court shall
    14  issue an access order upon the  same  finding  required  for  issuing  a
    15  warrant pursuant to article six hundred ninety of the criminal procedure
    16  law and subject to subdivision four of this section.
    17    (c) information retained by a law enforcement officer or agent that is
    18  subject to this provision shall not be shared with:
    19    (i)  persons  or  entities  that  do not agree to limit the use of the
    20  provided information to those purposes identified in the court  authori-
    21  zation; and
    22    (ii) persons or entities that:
    23    (A) are not legally obligated to destroy the provided information upon
    24  the expiration or rescindment of the court's retention order; or
    25    (B)  do not voluntarily agree to destroy the provided information upon
    26  the expiration or rescindment of the court's retention order.
    27    7. A law enforcement agency or law enforcement  officer  that  obtains
    28  electronic  information  pursuant  to  an  emergency involving danger of
    29  death or serious physical injury to a person, which requires  access  to
    30  the  electronic information without delay, shall within three days after
    31  obtaining the electronic information file with the appropriate court  an
    32  application  for a warrant or order that authorizes access to such elec-
    33  tronic information, or  a  motion  seeking  approval  of  the  emergency
    34  disclosures  that sets forth the facts giving rise to the emergency, and
    35  if applicable, a request supported by a sworn  affidavit  for  an  order
    36  delaying  notification  to  the court as required under paragraph (a) of
    37  subdivision two of section 695.15  of  this  article.  The  court  shall
    38  promptly rule on such application or motion, and shall order the immedi-
    39  ate  destruction of all information obtained, and immediate notification
    40  to the targets of a warrant or emergency request, pursuant  to  subdivi-
    41  sion  one  of  section  695.15  of  this article, if such notice has not
    42  already been given, upon a finding that the facts did not give  rise  to
    43  an  emergency, or upon a ruling that rejects the warrant or order appli-
    44  cation on any other ground.
    45    8. This section does not limit the  authority  of  a  law  enforcement
    46  agency  or law enforcement officer to use an administrative, grand jury,
    47  trial, or civil discovery subpoena to do any of the following:
    48    (a) require an originator, addressee,  or  intended  recipient  of  an
    49  electronic communication to disclose any electronic communication infor-
    50  mation associated with that communication;
    51    (b) require an entity that provides electronic communications services
    52  to  its  officers,  directors,  employees,  or agents for the purpose of
    53  carrying out their duties, to disclose electronic communication informa-
    54  tion associated with an electronic communication to or from an  officer,
    55  director, employee, or agent of the entity; or
    56    (c) require a service provider to provide subscriber information.

        S. 5730                             5
 
     1    9.  This  section does not prohibit the intended recipient of an elec-
     2  tronic communication from  voluntarily  disclosing  electronic  communi-
     3  cation  information  concerning  that communication to a law enforcement
     4  agency or law enforcement officer.
     5    10. Nothing in this section shall be construed to expand any authority
     6  under  state  law  to  compel  the production of or access to electronic
     7  information.
     8  § 695.15 Search and seizure of electronic devices and electronic  commu-
     9             nications; in an emergency.
    10    1.  Except  as  otherwise  provided in this section, a law enforcement
    11  agency or law enforcement officer that executes a  warrant,  or  obtains
    12  electronic  information  in  an  emergency pursuant to section 695.10 of
    13  this article, shall serve upon or deliver to the target of a warrant  or
    14  emergency request by registered or first-class mail, electronic mail, or
    15  by  other  means  reasonably  calculated  to be effective, a notice that
    16  informs the recipient that information  about  the  recipient  has  been
    17  compelled  or requested. Such notice shall state with reasonable specif-
    18  icity the nature of the government investigation pursuant to  which  the
    19  information is sought. The notice shall include a copy of the warrant or
    20  a  written  statement  setting forth facts giving rise to the emergency.
    21  The notice shall be provided contemporaneously with the execution  of  a
    22  warrant,  or,  in  the  case  of  an  emergency, within three days after
    23  obtaining the electronic information.   The target  of  the  warrant  is
    24  entitled to request a copy of the electronic information obtained in the
    25  same   form   it   was  received  upon  request.  Notice  shall  include
    26  instructions for requesting copies and a law enforcement agency and  law
    27  enforcement  officer  must provide copies of information obtained in the
    28  same form within three days of receiving the request from the target  of
    29  the warrant.
    30    2.  (a) When a warrant is sought or electronic information is obtained
    31  in an emergency under section 695.10 of this article, the  law  enforce-
    32  ment  agency  or law enforcement officer may submit a request to a court
    33  supported by a sworn affidavit for an order  delaying  notification  and
    34  prohibiting  any  party  providing  information from notifying any other
    35  party that information has been sought. The court shall issue the  order
    36  if  the  court determines that there is reason to believe that notifica-
    37  tion may have an adverse result, but only for the period  of  time  that
    38  the  court  finds  there  is reason to believe that the notification may
    39  have that adverse result, and not to exceed ninety days.
    40    (b) The court may grant extensions of the delay of up to  ninety  days
    41  each  on  the same grounds as provided in paragraph (a) of this subdivi-
    42  sion.
    43    (c) Upon expiration of the period in which notification is delayed,  a
    44  law  enforcement  agency or law enforcement officer shall serve upon the
    45  identified targets of a warrant or deliver to those  targets  by  regis-
    46  tered  or  first-class  mail, electronic mail, or other means reasonably
    47  calculated to be effective as specified by the court issuing  the  order
    48  authorizing  delayed notification, a document that includes the informa-
    49  tion described in subdivision one of this section, along with a copy  of
    50  all  electronic  information  obtained in the same form it was received,
    51  and a statement of the grounds for the court's determination to grant  a
    52  delay in notifying the individual.
    53    3.  If there is no identified target of a warrant or emergency request
    54  at the time of its issuance, the law enforcement agency or law  enforce-
    55  ment  officer  shall submit to the attorney general of this state within
    56  three days of the execution of the warrant or issuance of the request  a

        S. 5730                             6
 
     1  report  regarding  the  information  required in subdivision one of this
     2  section. If an order delaying notice is obtained pursuant to subdivision
     3  two of this section, the law enforcement agency or law enforcement offi-
     4  cer  shall  submit  to  the  attorney general upon the expiration of the
     5  period of delay of the notification a report regarding  the  information
     6  required in paragraph (c) of subdivision two of this section. The attor-
     7  ney  general's office shall publish such reports on its internet website
     8  within ninety days of receipt. The attorney general shall  redact  names
     9  and other personal identifying information from the reports.
    10    4. Except as otherwise provided in this section, nothing in this arti-
    11  cle  shall  prohibit or limit a service provider or any other party from
    12  disclosing information about any request or demand for electronic infor-
    13  mation.
    14  § 695.20 Search and seizure of electronic devices and electronic  commu-
    15             nications; when evidence can be suppressed.
    16    1.  Persons who are party to or otherwise subject to a trial, hearing,
    17  or other legal or administrative proceeding may move to  suppress  elec-
    18  tronic  information  obtained  or retained in violation of this article,
    19  the United States Constitution, State Constitution, the New  York  State
    20  Constitution or the provisions of the criminal procedure law. The motion
    21  shall  be  made  and shall be subject to review by a court in accordance
    22  with the procedures set forth in  article  seven  hundred  ten  of  this
    23  title.
    24    2.  The  attorney general of this state may commence a civil action to
    25  compel a law enforcement agency or law  enforcement  officer  to  comply
    26  with  the  provisions of this article.  This does not preclude action by
    27  an individual, service provider, or other recipient of a warrant, order,
    28  or other legal process that is inconsistent with this article.
    29    3. An individual, service provider or other recipient  of  a  warrant,
    30  order,  or  other  legal process that is inconsistent with this article,
    31  the United States Constitution, or the New York State  Constitution  may
    32  petition  the  issuing  court  to  void or modify the warrant, order, or
    33  process, or to order the  destruction  of  information  that  is  sought
    34  pursuant to such a warrant, order or other legal process.
    35    4. A state, territory or commonwealth of the United States and foreign
    36  and  domestic corporations as well as officers, employees, and agents of
    37  these entities shall not be subject to a cause of action  for  providing
    38  records,  information,  facilities,  or  other  forms  of  assistance in
    39  accordance with the terms of a warrant, court order, statutory  authori-
    40  zation,  emergency  certification,  or  wiretap order issued pursuant to
    41  this article.  This does not preclude a cause of  action  for  providing
    42  records,  information,  facilities,  or  other  forms of assistance in a
    43  manner that is inconsistent with this article.
    44  § 695.25 Search and seizure of electronic devices and electronic  commu-
    45             nications; annual report.
    46    1.  A  law  enforcement agency or law enforcement officer that obtains
    47  electronic communication information pursuant to this article shall make
    48  an annual report to the attorney general of this  state  regarding  such
    49  information.  The  report shall be made on or before February first, two
    50  thousand eighteen, and on February first of each year thereafter. To the
    51  extent such information can be reasonably determined, the  report  shall
    52  include the following:
    53    (a)  the  total  number  of times electronic information was sought or
    54  obtained pursuant to this article;

        S. 5730                             7
 
     1    (b) the number of times such information was sought or  obtained,  and
     2  the  number of records obtained for each of the following categories the
     3  types of electronic information:
     4    (i) electronic communication content;
     5    (ii) location information;
     6    (iii)  electronic  device information (not including location informa-
     7  tion); and
     8    (iv) other electronic communication information.
     9    (c) for each type of information identified in paragraph (b)  of  this
    10  subdivision:
    11    (i)  the number of times the information was sought or obtained pursu-
    12  ant to:
    13    (1) wiretap orders obtained pursuant to this article;
    14    (2) search warrants obtained pursuant to this article; and
    15    (3) emergency requests subject to subdivision eight of section  695.10
    16  of this article.
    17    (ii)  the  total number of individuals whose information was sought or
    18  obtained;
    19    (iii) the total number of instances in which information was sought or
    20  obtained that did not specify a target individual  from  whom  or  about
    21  whom the information was requested;
    22    (iv)  for  demands  or  requests  issued  upon a service provider, the
    23  number of such demands or requests  complied  with  in  full,  partially
    24  complied with, and not complied with;
    25    (v)  the  number of times notice to targeted individuals of a warrant,
    26  court order, statutory authorization, emergency certification, or  wire-
    27  tap  order  issued  pursuant to this article was delayed and the average
    28  length of the delay;
    29    (vi) the number of times records obtained pursuant to a warrant, court
    30  order, statutory  authorization,  emergency  certification,  or  wiretap
    31  order  issued pursuant to this article were shared with other government
    32  entities or any department or agency of the federal government, and  the
    33  agencies with which such records were shared;
    34    (vii)  the  average  period of time for which location information was
    35  obtained or received; and
    36    (viii) the number of instances in which electronic information  sought
    37  or obtained pursuant to this article was relevant to a criminal proceed-
    38  ing that led to a conviction.
    39    2.  On  or  before  April first, two thousand nineteen, and each April
    40  first thereafter, the attorney general's office  shall  publish  on  its
    41  internet  website  a  summary  aggregating  data related to each type of
    42  electronic communication identified in paragraphs (a), (b)  and  (c)  of
    43  subdivision one of this section by county.
    44    3.  Nothing  in  this  article  shall  prohibit  or restrict a service
    45  provider from producing an annual  report  summarizing  the  demands  or
    46  requests it receives under this article.
    47    § 2. This act shall take effect immediately.
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