A. 9235 Summary:

BILL NOA09235
 
SAME ASNo Same As
 
SPONSORDinowitz
 
COSPNSRGottfried, Galef, Gjonaj, Joyner, Titone, Linares, Richardson, Mosley, Abinanti, Quart
 
MLTSPNSRCook, Davila, Englebright, Glick, Ramos, Robinson, Rozic, Skartados
 
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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A. 9235 Actions:

BILL NOA09235
 
02/04/2016referred to codes
06/08/2016reported referred to rules
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A. 9235 Floor Votes:

There are no votes for this bill in this legislative session.
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A. 9235 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A9235
 
SPONSOR: Dinowitz (MS)
  TITLE OF BILL: An act to amend the criminal procedure law, in relation to establishing the New York electronic communications privacy act ("NYECPA")   PURPOSE OR GENERAL IDEA OF BILL: This bill would require a search warrant for access to all aspects of electronic communications except where federal law allows voluntary disclosure.   SUMMARY OF SPECIFIC PROVISIONS: Section one amends the criminal procedure law by adding the new article 695. This bill would require government agents and agencies to obtain a search warrant for physical or electronic access to electronic device information. The warrant must be described with particularity and the government agency must provide contemporaneous notice to the target of the warrant, with exceptions for emergency situations. The bill would direct all government agencies that obtain electronic communication information pursuant to this bill to annually report information to the Attorney General. The bill provides enforcement mechanisms if government agencies or agents fail to comply with the provisions of the bill. Section two provides the effective date.   JUSTIFICATION: New York residents increasingly rely on mobile devices, computers, tablets, and the internet to connect, communicate, work, research infor- mation and manage personal matters, including sensitive or confidential matters. At present, federal and state laws protecting the content of these private electronic communications are antiquated and fail to address the surveillance capabilities of modern technology. In this digital age, it is important to protect the privacy and due process rights of New York residents by ensuring New York privacy laws are updated to reflect the capabilities and consequences of new technology. In two recent decisions, United States v. Jones and Riley v. Califor- nia, the U.S. Supreme Court upheld Fourth Amendment privacy rights against warrantless government surveillance. Justice Alito in Jones also prompted lawmakers to take action, noting that in circumstances involv- ing dramatic technological change "a legislative body is well suited to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way." The New York Elec- tronic Communications Privacy Act heeds the call in Jones for the legis- lature to act and to safeguard New Yorkers, spur innovation, and support public safety by updating privacy law to match the modern digital world. This bill will make sure that the law enforcement officers go to a judge and get a warrant before they can access sensitive information, includ- ing data from personal electronic devices, emails, digital documents, text messages, and location information under normal circumstances. The bill also includes thoughtful exceptions to ensure that they can contin- ue to effectively and efficiently protect public safety. The bill's notice, reporting, and enforcement provisions make sure that there is a proper transparency and oversight mechanisms to ensure that the law is followed and there is parity in criminal proceedings.   PRIOR LEGISLATIVE HISTORY: New bill   FISCAL IMPLICATIONS: None to the State.   EFFECTIVE DATE: This act shall take effect immediately.
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A. 9235 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          9235
 
                   IN ASSEMBLY
 
                                    February 4, 2016
                                       ___________
 
        Introduced  by  M.  of  A.  DINOWITZ,  GOTTFRIED, GALEF, GJONAJ, JOYNER,
          TITONE, LINARES -- Multi-Sponsored by -- M. of A. DAVILA, ENGLEBRIGHT,
          GLICK, RAMOS, SKARTADOS -- read once and referred 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.
                                                                   LBD13775-01-6

        A. 9235                             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.
    18    5.  "Electronic  communication  service" means a service that provides
    19  subscribers to or users of such service the ability to send  or  receive
    20  an  electronic  communication  as  defined  in this article, including a
    21  service that acts as an intermediary in the transmission  of  electronic
    22  communications, or that stores electronic communication information.
    23    6. "Electronic device" means a device that stores, generates, or tran-
    24  smits information in electronic form.
    25    7.  "Electronic  device  information"  means  information stored in or
    26  generated through the  operation  of  an  electronic  device,  including
    27  information related to the location of such device at any time.
    28    8. "Electronic information" means electronic communication information
    29  or electronic device information.
    30    9. "Law enforcement agency" means any agency which is empowered by law
    31  to  conduct  an  investigation or to make an arrest for an offense under
    32  the penal law, and an agency which is authorized by law to prosecute  or
    33  participate in the prosecution of an offense under the penal law.
    34    10.  "Law  enforcement  officer"  means  any  public  servant  who  is
    35  empowered by law to conduct an investigation of or to make an arrest for
    36  an offense under the penal law, and any attorney authorized  by  law  to
    37  prosecute  or  participate  in  the  prosecution of an offense under the
    38  penal law.
    39    11. "Location information" means information regarding the general  or
    40  specific location of an electronic device.
    41    12. "Service provider" means a person or entity that provides an elec-
    42  tronic communication service.
    43    13.  "Specific  consent"  means  consent  provided  directly  to a law
    44  enforcement  agency  or  law  enforcement  officer  seeking  information
    45  regarding  an  electronic  communication,  including  but not limited to
    46  circumstances in which a law enforcement agency or law enforcement offi-
    47  cer is the addressee or intended recipient or a member of  the  intended
    48  audience for such communication.
    49    14. "Subscriber information" means the name, street address, telephone
    50  number,  email  address,  or  similar  contact information provided by a
    51  subscriber to the service provider in order to establish or  maintain  a
    52  communication   channel  or  an  account  for  electronic  communication
    53  services, as well as a subscriber  identifier  or  account  number,  the
    54  period  of  time in which the subscriber receives service; and the types
    55  of services used by a user of or subscriber to a service provider.

        A. 9235                             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 three 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  electronic  device information by means of physical interaction or elec-
    27  tronic communication with the device only as follows:
    28    (a) pursuant to a warrant in accordance with article six hundred nine-
    29  ty of this title and subject  to  subdivision  three  of  this  section,
    30  unless the law enforcement agency or law enforcement officer is required
    31  under  section 250.00 of the penal law and article seven hundred of this
    32  title to obtain a warrant issued pursuant to article  seven  hundred  of
    33  this title;
    34    (b)  pursuant  to  a  warrant  issued in accordance with article seven
    35  hundred of this title;
    36    (c) with the specific consent  of  the  authorized  possessor  of  the
    37  device;
    38    (d)  with  the  specific consent of the owner of the device, only when
    39  the device has been reported as lost or stolen; or
    40    (e) if the law enforcement agency or law enforcement officer, in  good
    41  faith,  believes  the  device to be lost, stolen, or abandoned, provided
    42  that the law enforcement agency or law enforcement officer shall  access
    43  electronic  device  information  only  for  the purpose of attempting to
    44  identify, verify, or contact the owner or authorized  possessor  of  the
    45  device.
    46    4. Any warrant for electronic information shall:
    47    (a) describe with particularity the information to be seized by speci-
    48  fying  the  time  periods  for  which such information is sought and, as
    49  appropriate and reasonable, the  target  individuals  or  accounts,  the
    50  applications  or  services covered, and the types of information sought;
    51  and
    52    (b) comply with all applicable provisions of state  and  federal  law,
    53  including  such  provisions  that  prohibit  or  limit the use of search
    54  warrants, or that impose additional requirements, beyond  the  scope  of
    55  this article, regarding search warrants.

        A. 9235                             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  destroy
     7  that information within ninety days except in one or more of the follow-
     8  ing 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 the retention of the electronic communication information. A court
    14  shall issue a retention order upon a  finding  that  the  conditions  on
    15  which  the initial voluntary disclosure was based persist, in which case
    16  the court shall authorize the retention of such information only for  so
    17  long  as  those  conditions persist, or where there is probable cause to
    18  believe that such information constitutes evidence that a crime has been
    19  committed.
    20    (c) information retained by a law enforcement officer or agent that is
    21  subject to this provision shall not be shared with:
    22    (i) persons or entities that do not agree to  limit  the  use  of  the
    23  provided  information to those purposes identified in the court authori-
    24  zation; and
    25    (ii) persons or entities that:
    26    (A) are not legally obligated to destroy the provided information upon
    27  the expiration or rescindment of the court's retention order; or
    28    (B) do not voluntarily agree to destroy the provided information  upon
    29  the expiration or rescindment of the court's retention order.
    30    7.  A  law  enforcement agency or law enforcement officer that obtains
    31  electronic information pursuant to  an  emergency  involving  danger  of
    32  death  or  serious physical injury to a person, which requires access to
    33  the electronic information without delay, shall within three days  after
    34  obtaining  the electronic information file with the appropriate court an
    35  application for a warrant or order that authorizes access to such  elec-
    36  tronic  information,  or  a  motion  seeking  approval  of the emergency
    37  disclosures that sets forth the facts giving rise to the emergency,  and
    38  if  applicable,  a  request  supported by a sworn affidavit for an order
    39  delaying notification to the court as required under  paragraph  (a)  of
    40  subdivision  two  of  section  695.15  of  this article. The court shall
    41  promptly rule on such application or motion, and shall order the immedi-
    42  ate destruction of all information obtained, and immediate  notification
    43  to  the  targets of a warrant or emergency request, pursuant to subdivi-
    44  sion one of section 695.15 of this  article,  if  such  notice  has  not
    45  already  been  given, upon a finding that the facts did not give rise to
    46  an emergency, or upon a ruling that rejects the warrant or order  appli-
    47  cation on any other ground.
    48    8.  This  section  does  not  limit the authority of a law enforcement
    49  agency or law enforcement officer to use an administrative, grand  jury,
    50  trial, or civil discovery subpoena to do any of the following:
    51    (a)  require  an  originator,  addressee,  or intended recipient of an
    52  electronic communication to disclose any electronic communication infor-
    53  mation associated with that communication;
    54    (b) require an entity that provides electronic communications services
    55  to its officers, directors, employees, or  agents  for  the  purpose  of
    56  carrying out their duties, to disclose electronic communication informa-

        A. 9235                             5
 
     1  tion  associated with an electronic communication to or from an officer,
     2  director, employee, or agent of the entity; or
     3    (c) require a service provider to provide subscriber information.
     4    9.  This  section does not prohibit the intended recipient of an elec-
     5  tronic communication from  voluntarily  disclosing  electronic  communi-
     6  cation  information  concerning  that communication to a law enforcement
     7  agency or law enforcement officer.
     8    10. Nothing in this section shall be construed to expand any authority
     9  under state law to compel the production  of  or  access  to  electronic
    10  information.
    11  § 695.15 Search  and seizure of electronic devices and electronic commu-
    12             nications; in an emergency.
    13    1. Except as otherwise provided in this  section,  a  law  enforcement
    14  agency  or  law  enforcement officer that executes a warrant, or obtains
    15  electronic information in an emergency pursuant  to  section  695.10  of
    16  this  article, shall serve upon or deliver to the target of a warrant or
    17  emergency request by registered or first-class mail, electronic mail, or
    18  by other means reasonably calculated to  be  effective,  a  notice  that
    19  informs  the  recipient  that  information  about the recipient has been
    20  compelled or requested. Such notice shall state with reasonable  specif-
    21  icity  the  nature of the government investigation pursuant to which the
    22  information is sought. The notice shall include a copy of the warrant or
    23  a written statement setting forth facts giving rise  to  the  emergency.
    24  The  notice  shall be provided contemporaneously with the execution of a
    25  warrant, or, in the case  of  an  emergency,  within  three  days  after
    26  obtaining  the electronic information. Notice shall be supplemented with
    27  copies of electronic information  obtained  in  the  same  form  it  was
    28  received within three days of obtaining the electronic information.
    29    2.  (a) When a warrant is sought or electronic information is obtained
    30  in an emergency under section 695.10 of this article, the  law  enforce-
    31  ment  agency  or law enforcement officer may submit a request to a court
    32  supported by a sworn affidavit for an order  delaying  notification  and
    33  prohibiting  any  party  providing  information from notifying any other
    34  party that information has been sought. The court shall issue the  order
    35  if  the  court determines that there is reason to believe that notifica-
    36  tion may have an adverse result, but only for the period  of  time  that
    37  the  court  finds  there  is reason to believe that the notification may
    38  have that adverse result, and not to exceed ninety days.
    39    (b) The court may grant extensions of the delay of up to  ninety  days
    40  each  on  the same grounds as provided in paragraph (a) of this subdivi-
    41  sion.
    42    (c) Upon expiration of the period in which notification is delayed,  a
    43  law  enforcement  agency or law enforcement officer shall serve upon the
    44  identified targets of a warrant or deliver to those  targets  by  regis-
    45  tered  or  first-class  mail, electronic mail, or other means reasonably
    46  calculated to be effective as specified by the court issuing  the  order
    47  authorizing  delayed notification, a document that includes the informa-
    48  tion described in subdivision one of this section, along with a copy  of
    49  all  electronic  information  obtained in the same form it was received,
    50  and a statement of the grounds for the court's determination to grant  a
    51  delay in notifying the individual.
    52    3.  If there is no identified target of a warrant or emergency request
    53  at the time of its issuance, the law enforcement agency or law  enforce-
    54  ment  officer  shall submit to the attorney general of this state within
    55  three days of the execution of the warrant or issuance of the request  a
    56  report  regarding  the  information  required in subdivision one of this

        A. 9235                             6

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

        A. 9235                             7
 
     1    (c)  for  each type of information identified in paragraph (b) of this
     2  subdivision:
     3    (i)  the number of times the information was sought or obtained pursu-
     4  ant to:
     5    (1) wiretap orders obtained pursuant to this article;
     6    (2) search warrants obtained pursuant to this article; and
     7    (3) emergency requests subject to subdivision eight of section  695.10
     8  of this article.
     9    (ii)  the  total number of individuals whose information was sought or
    10  obtained;
    11    (iii) the total number of instances in which information was sought or
    12  obtained that did not specify a target individual  from  whom  or  about
    13  whom the information was requested;
    14    (iv)  for  demands  or  requests  issued  upon a service provider, the
    15  number of such demands or requests  complied  with  in  full,  partially
    16  complied with, and not complied with;
    17    (v)  the  number of times notice to targeted individuals of a warrant,
    18  court order, statutory authorization, emergency certification, or  wire-
    19  tap  order  issued  pursuant to this article was delayed and the average
    20  length of the delay;
    21    (vi) the number of times records obtained pursuant to a warrant, court
    22  order, statutory  authorization,  emergency  certification,  or  wiretap
    23  order  issued pursuant to this article were shared with other government
    24  entities or any department or agency of the federal government, and  the
    25  agencies with which such records were shared;
    26    (vii)  the  average  period of time for which location information was
    27  obtained or received; and
    28    (viii) the number of instances in which electronic information  sought
    29  or obtained pursuant to this article was relevant to a criminal proceed-
    30  ing that led to a conviction.
    31    2.  On  or  before  April first, two thousand eighteen, and each April
    32  first thereafter, the attorney general's office  shall  publish  on  its
    33  internet website the following:
    34    (a)  individual  reports  from  each  law  enforcement  agency  or law
    35  enforcement officer that requests or compels the production of  contents
    36  or  records pertaining to an electronic communication or location infor-
    37  mation; and
    38    (b) a summary aggregating data related  to  each  type  of  electronic
    39  communication  identified  in paragraphs (a), (b) and (c) of subdivision
    40  one of this section.
    41    3. Nothing in this  article  shall  prohibit  or  restrict  a  service
    42  provider  from  producing  an  annual  report summarizing the demands or
    43  requests it receives under this article.
    44    § 2. This act shall take effect immediately.
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