Bill Text: NJ A3858 | 2014-2015 | Regular Session | Introduced
Bill Title: Upgrades crime of stalking when stalking activity is carried out or assisted by installation or use of communication or location monitoring program or device on cellular phone or wireless mobile device.*
Spectrum: Partisan Bill (Democrat 4-0)
Status: (Introduced - Dead) 2015-12-14 - Reported from Assembly Comm. as a Substitute, 2nd Reading [A3858 Detail]
Download: New_Jersey-2014-A3858-Introduced.html
Sponsored by:
Assemblyman DANIEL R. BENSON
District 14 (Mercer and Middlesex)
SYNOPSIS
Prohibits installation of communication or location monitoring program or device on cellular phones or wireless devices without consent of subscriber; prohibits use of program or device without consent of all parties whose activities are monitored.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning certain individuals' lawful authority to intercept or acquire certain communications, and amending P.L.1968, c.409.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 2 of P.L.1968, c.409 (C.2A:156A-2) is amended to read as follows:
2. As used in this act:
a. "Wire communication" means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection between the point of origin and the point of reception, including the use of such connection in a switching station, furnished or operated by any person engaged in providing or operating such facilities for the transmission of intrastate, interstate or foreign communication. "Wire communication" includes any electronic storage of such communication, and the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit;
b. "Oral communication" means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but does not include any electronic communication;
c. "Intercept" means the aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical, or other device;
d. "Electronic, mechanical or other device" means any device or apparatus, including an induction coil, or computer program as defined in subsection e. of section 1 of P.L.1984, c.182 (C.2A:38A-1) that can be used to intercept a wire, electronic or oral communication other than:
(1) Any telephone or telegraph instrument, equipment or facility, or any component thereof, furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business; or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; or being used by a provider of wire or electronic communication service in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties; or
(2) A hearing aid or similar device being used to correct subnormal hearing to not better than normal;
e. "Person" means that term as defined in R.S.1:1-2 and includes any officer or employee of the State or of a political subdivision thereof;
f. "Investigative or law enforcement officer" means any officer of the State of New Jersey or of a political subdivision thereof who is empowered by law to conduct investigations of, or to make arrests for, any offense enumerated in section 8 of P.L.1968, c.409 (C.2A:156A-8) and any attorney authorized by law to prosecute or participate in the prosecution of any such offense;
g. "Contents," when used with respect to any wire, electronic or oral communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication, except that for purposes of sections 22, 23, 24 and 26 of P.L.1993, c.29 (C.2A:156A-28, C.2A:156A-29, C.2A:156A-30, and C.2A:156A-32) contents, when used with respect to any wire, electronic, or oral communication means any information concerning the substance, purport or meaning of that communication.
"Contents," when used with respect to any electronic communication, also includes the location information of one or more parties to the communication;
h. "Court of competent jurisdiction" means the Superior Court;
i. "Judge," when referring to a judge authorized to receive applications for, and to enter, orders authorizing interceptions of wire, electronic or oral communications, means one of the several judges of the Superior Court to be designated from time to time by the Chief Justice of the Supreme Court to receive applications for, and to enter, orders authorizing interceptions of wire, electronic or oral communications pursuant to this act;
j. "Communication common carrier" means any person engaged as a common carrier for hire, in intrastate, interstate or foreign communication by wire or radio or in intrastate, interstate or foreign radio transmission of energy; but a person engaged in radio broadcasting shall not, while so engaged, be deemed a common carrier;
k. "Aggrieved person" means a person who was a party to any intercepted wire, electronic or oral communication or a person against whom the interception was directed;
l. "In-progress trace" means the determination of the origin of a telephonic communication to a known telephone during the communication;
m. "Electronic communication" means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectric or photo-optical system that affects interstate, intrastate or foreign commerce, but does not include:
(1) Any wire or oral communication;
(2) Any communication made through a tone-only paging device; or
(3) Any communication from a tracking device;
n. "User" means any person or entity who:
(1) Uses an electronic communication service; and
(2) Is duly authorized by the provider of such service to engage in such use;
o. "Electronic communication system" means any wire, radio, electromagnetic, photo-optical or photoelectronic facilities for the transmission of electronic communications, and any computer facilities or related electronic equipment for the electronic storage of such communications;
p. "Electronic communication service" means any service which provides to the users thereof the ability to send or receive wire or electronic communications;
q. "Electronic storage" means:
(1) Any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and
(2) Any storage of such communication by an electronic communication service for purpose of backup protection of the communication;
r. "Readily accessible to the general public" means, with respect to a radio communication, that such communication is not:
(1) Scrambled or encrypted;
(2) Transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of such communication;
(3) Carried on a subcarrier or other signal subsidiary to a radio transmission;
(4) Transmitted over a communication system provided by a common carrier, unless the communication is a tone-only paging system communication; or
(5) Transmitted on frequencies allocated under part 25, subpart D, E, or F of part 74, or part [94] 101 of the Rules of the Federal Communications Commission, unless, in the case of a communication transmitted on a frequency allocated under part 74 that is not exclusively allocated to broadcast auxiliary services, the communication is a two-way voice communication by radio;
s. "Remote computing service" means the provision to the public of computer storage or processing services by means of an electronic communication system;
t. "Aural transfer" means a transfer containing the human voice at any point between and including the point of origin and the point of reception;
u. "Tracking device" means an electronic or mechanical device which permits the tracking of the movement of a person or device , but does not otherwise intercept or electronically store any wire, electronic, or oral communication;
v. "Point of interception" means the site at which the investigative or law enforcement officer is located at the time the interception is made;
w. "Location information" means global positioning system data, enhanced 9-1-1 data, cellular site information, and any other information that would assist an individual or a law enforcement agency in tracking the physical location of a cellular telephone or wireless mobile device.
(cf: P.L.2009, c.184, s.1)
2. Section 4 of P.L.1968, c.409 (C.2A:156A-4) is amended to read as follows:
4. It shall not be unlawful under this act for:
a. An operator of a switchboard, or an officer, agent or employee of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication, to intercept, disclose or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service. No provider of wire or electronic communication service shall utilize service observing or random monitoring except for mechanical or service quality control checks;
b. Any investigative or law enforcement officer to intercept a wire, electronic or oral communication, where such officer is a party to the communication or where another officer who is a party to the communication requests or requires him to make such interception;
c. Any person acting at the direction of an investigative or law enforcement officer to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception; provided, however, that no such interception shall be made without the prior approval of the Attorney General or his designee or a county prosecutor or his designee;
d. [A] (1) Except as otherwise provided in this subsection, a person not acting under color of law to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception unless such communication is intercepted or used for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of this State or for the purpose of committing any other injurious act. The fact that such person is the subscriber to a particular telephone, including a cellular telephone, or a particular wireless mobile device does not constitute consent effective to authorize interception of communications among parties not including such person on that telephone or device.
(2) Notwithstanding paragraph (1) of this subsection, an individual not acting under color of law to intercept a wire, electronic or oral communication or acquire the communication from electronic storage kept by an electronic communication service or remote computing system, that is intercepted or acquired by means of the installation of any electronic, mechanical or other device on a cellular telephone or wireless mobile device where the subscriber to the particular cellular telephone or wireless mobile device has given prior consent to the installation, and where all the parties to the communication have given prior consent to the interception unless the communication is intercepted or used for the purpose of committing any criminal or tortuous act in violation of the Constitution or laws of the United States or of this State or for the purpose of committing any other injurious act.
Any person who unlawfully intercepts or uses such communication as provided in this [paragraph] subsection shall be subject to the civil liability established in section 24 of P.L.1968, c.409 (C.2A:156A-24), in addition to any other criminal or civil liability imposed by law;
e. Any person to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public;
f. Any person to intercept any radio communication which is transmitted:
(1) by any station for the use of the general public, or that relates to ships, aircraft, vehicles, or persons in distress;
(2) by any governmental, law enforcement, civil defense, private land mobile, or public safety communication system, including police and fire, readily accessible to the general public;
(3) by a station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services; or
(4) by any marine or aeronautical communications system;
g. Any person to engage in any conduct which:
(1) is prohibited by section 633 of the Communications Act of 1934 (47 U.S.C. s.553) ; or
(2) is excepted from the application of section 705(a) of the Communications Act of 1934 (47 U.S.C. s.605(a)) by section 705(b) of that Act (47 U.S.C. s.605(b)) ;
h. Any person to intercept any wire or electronic communication the transmission of which is causing harmful interference to any lawfully operating station or consumer electronic equipment, to the extent necessary to identify the source of such interference; or for other users of the same frequency to intercept any radio communication made through a system that utilizes frequencies monitored by individuals engaged in the provision or the use of such system, if such communication is not scrambled or encrypted; or
i. A provider of electronic communication service to record the fact that a wire or electronic communication was initiated or completed in order to protect such provider, another provider furnishing service toward the completion of the wire or electronic communication, or a user of that service, from fraudulent, unlawful or abusive use of such service.
(cf: P.L.1999, c.151, s.3)
3. This act shall take effect immediately.
STATEMENT
This bill seeks to limit an individual's lawful authority to monitor others through the use of computer programs or other devices installed on cellular phones or other wireless mobile devices. It would apply to monitoring based on location tracking as well as the monitoring of communications (including, inter alia, phone conversations, emails, and text messages).
It would make the installation and use of such programs an unlawful form of eavesdropping under the "New Jersey Wiretapping and Electronic Surveillance Control Act," P.L.1968, c.409 (C.2A:156A-1 et seq.), unless the subscriber of the cellular phone or other device gave prior consent to the installation. Additionally, with respect to the use of the program to monitor communications, the bill would require that all parties to a communication give prior consent to the communication being intercepted by the program, and thus be made aware that the communication would be subject to monitoring by some other individual.
A violation of the bill would be graded as a crime of the third degree. Such a crime is ordinarily punishable by a term of imprisonment of three to five years, a fine of up to $15,000, or both. See P.L.1968, c.409, s.3 (C.2A:156A-3). A violation would also subject the wrongdoer to a civil cause of action, being liable for: any actual damages to an aggrieved party (but not less than liquidated damages computed at the rate of $100 a day for each day of violation, or $1,000, whichever is greater); punitive damages; and reasonable attorney's fees and other litigation costs. See P.L.1968, c.409, s.24 (C.2A:156A-24).
The sponsor intends this bill to prohibit situations in which an individual is secretly monitored, due to the installation of a computer program or other device on a cellular phone or other mobile device unbeknownst to that individual.
