STATE OF NEW YORK ________________________________________________________________________ 6044 2017-2018 Regular Sessions IN SENATE May 10, 2017 ___________ Introduced by Sen. AVELLA -- 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. LBD03787-04-7S. 6044 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. 6044 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. 6044 4 1 (c) If an affidavit, declaration, deposition, allegation of fact or 2 other material is submitted in support of the application for a warrant, 3 the judge must file it with the court within twenty-four hours of the 4 issuance of a warrant. 5 5. A service provider may voluntarily disclose electronic communi- 6 cation information or subscriber information when that disclosure is not 7 otherwise prohibited by this article or by other provisions of state law 8 or by federal law. 9 6. A law enforcement agency or law enforcement officer that receives 10 electronic communication information provided voluntarily shall seal 11 that information within ninety days and access to the information shall 12 be prohibited except in one or more of the following circumstances: 13 (a) a law enforcement officer or agency obtains specific consent from 14 the sender or recipient of the electronic communications about which 15 information has been disclosed; or 16 (b) a law enforcement officer or agency obtains a court order author- 17 izing access to the electronic communication information. A court shall 18 issue an access order upon the same finding required for issuing a 19 warrant pursuant to article six hundred ninety of the criminal procedure 20 law and subject to subdivision four of this section. 21 (c) information retained by a law enforcement officer or agent that is 22 subject to this provision shall not be shared with: 23 (i) persons or entities that do not agree to limit the use of the 24 provided information to those purposes identified in the court authori- 25 zation; and 26 (ii) persons or entities that: 27 (A) are not legally obligated to destroy the provided information upon 28 the expiration or rescindment of the court's retention order; or 29 (B) do not voluntarily agree to destroy the provided information upon 30 the expiration or rescindment of the court's retention order. 31 7. A law enforcement agency or law enforcement officer that obtains 32 electronic information pursuant to an emergency involving danger of 33 death or serious physical injury to a person, which requires access to 34 the electronic information without delay, shall within three days after 35 obtaining the electronic information file with the appropriate court an 36 application for a warrant or order that authorizes access to such elec- 37 tronic information, or a motion seeking approval of the emergency 38 disclosures that sets forth the facts giving rise to the emergency, and 39 if applicable, a request supported by a sworn affidavit for an order 40 delaying notification to the court as required under paragraph (a) of 41 subdivision two of section 695.15 of this article. The court shall 42 promptly rule on such application or motion, and shall order the immedi- 43 ate destruction of all information obtained, and immediate notification 44 to the targets of a warrant or emergency request, pursuant to subdivi- 45 sion one of section 695.15 of this article, if such notice has not 46 already been given, upon a finding that the facts did not give rise to 47 an emergency, or upon a ruling that rejects the warrant or order appli- 48 cation on any other ground. 49 8. This section does not limit the authority of a law enforcement 50 agency or law enforcement officer to use an administrative, grand jury, 51 trial, or civil discovery subpoena to do any of the following: 52 (a) require an originator, addressee, or intended recipient of an 53 electronic communication to disclose any electronic communication infor- 54 mation associated with that communication; 55 (b) require an entity that provides electronic communications services 56 to its officers, directors, employees, or agents for the purpose ofS. 6044 5 1 carrying out their duties, to disclose electronic communication informa- 2 tion associated with an electronic communication to or from an officer, 3 director, employee, or agent of the entity; or 4 (c) require a service provider to provide subscriber information. 5 9. This section does not prohibit the intended recipient of an elec- 6 tronic communication from voluntarily disclosing electronic communi- 7 cation information concerning that communication to a law enforcement 8 agency or law enforcement officer. 9 10. Nothing in this section shall be construed to expand any authority 10 under state law to compel the production of or access to electronic 11 information. 12 § 695.15 Search and seizure of electronic devices and electronic commu- 13 nications; in an emergency. 14 1. Except as otherwise provided in this section, a law enforcement 15 agency or law enforcement officer that executes a warrant, or obtains 16 electronic information in an emergency pursuant to section 695.10 of 17 this article, shall serve upon or deliver to the target of a warrant or 18 emergency request by registered or first-class mail, electronic mail, or 19 by other means reasonably calculated to be effective, a notice that 20 informs the recipient that information about the recipient has been 21 compelled or requested. Such notice shall state with reasonable specif- 22 icity the nature of the government investigation pursuant to which the 23 information is sought. The notice shall include a copy of the warrant or 24 a written statement setting forth facts giving rise to the emergency. 25 The notice shall be provided contemporaneously with the execution of a 26 warrant, or, in the case of an emergency, within three days after 27 obtaining the electronic information. The target of the warrant is 28 entitled to request a copy of the electronic information obtained in the 29 same form it was received upon request. Notice shall include 30 instructions for requesting copies and a law enforcement agency and law 31 enforcement officer must provide copies of information obtained in the 32 same form within three days of receiving the request from the target of 33 the warrant. 34 2. (a) When a warrant is sought or electronic information is obtained 35 in an emergency under section 695.10 of this article, the law enforce- 36 ment agency or law enforcement officer may submit a request to a court 37 supported by a sworn affidavit for an order delaying notification and 38 prohibiting any party providing information from notifying any other 39 party that information has been sought. The court shall issue the order 40 if the court determines that there is reason to believe that notifica- 41 tion may have an adverse result, but only for the period of time that 42 the court finds there is reason to believe that the notification may 43 have that adverse result, and not to exceed ninety days. 44 (b) The court may grant extensions of the delay of up to ninety days 45 each on the same grounds as provided in paragraph (a) of this subdivi- 46 sion. 47 (c) Upon expiration of the period in which notification is delayed, a 48 law enforcement agency or law enforcement officer shall serve upon the 49 identified targets of a warrant or deliver to those targets by regis- 50 tered or first-class mail, electronic mail, or other means reasonably 51 calculated to be effective as specified by the court issuing the order 52 authorizing delayed notification, a document that includes the informa- 53 tion described in subdivision one of this section, along with a copy of 54 all electronic information obtained in the same form it was received, 55 and a statement of the grounds for the court's determination to grant a 56 delay in notifying the individual.S. 6044 6 1 3. If there is no identified target of a warrant or emergency request 2 at the time of its issuance, the law enforcement agency or law enforce- 3 ment officer shall submit to the attorney general of this state within 4 three days of the execution of the warrant or issuance of the request a 5 report regarding the information required in subdivision one of this 6 section. If an order delaying notice is obtained pursuant to subdivision 7 two of this section, the law enforcement agency or law enforcement offi- 8 cer shall submit to the attorney general upon the expiration of the 9 period of delay of the notification a report regarding the information 10 required in paragraph (c) of subdivision two of this section. The attor- 11 ney general's office shall publish such reports on its internet website 12 within ninety days of receipt. The attorney general shall redact names 13 and other personal identifying information from the reports. 14 4. Except as otherwise provided in this section, nothing in this arti- 15 cle shall prohibit or limit a service provider or any other party from 16 disclosing information about any request or demand for electronic infor- 17 mation. 18 § 695.20 Search and seizure of electronic devices and electronic commu- 19 nications; when evidence can be suppressed. 20 1. Persons who are party to or otherwise subject to a trial, hearing, 21 or other legal or administrative proceeding may move to suppress elec- 22 tronic information obtained or retained in violation of this article, 23 the United States Constitution, State Constitution, the New York State 24 Constitution or the provisions of the criminal procedure law. The motion 25 shall be made and shall be subject to review by a court in accordance 26 with the procedures set forth in article seven hundred ten of this 27 title. 28 2. The attorney general of this state may commence a civil action to 29 compel a law enforcement agency or law enforcement officer to comply 30 with the provisions of this article. This does not preclude action by 31 an individual, service provider, or other recipient of a warrant, order, 32 or other legal process that is inconsistent with this article. 33 3. An individual, service provider or other recipient of a warrant, 34 order, or other legal process may petition the issuing court to quash or 35 modify the warrant, order, or process, or to order the destruction of 36 information that is sought pursuant to such a warrant, order or other 37 legal process, on the basis that the warrant, order or process violates 38 the United States Constitution, the New York State Constitution, or is 39 otherwise contrary to federal or state law. The warrant recipient may 40 also move the quash on the basis that the information or records 41 requested are unusually voluminous in nature or compliance with such 42 order otherwise would cause an undue burden on such provider. The 43 court's decision to grant or deny that petition, in whole or in part, 44 filed under this paragraph is immediately appealable pursuant to section 45 fifty-seven hundred one of the civil practice law and rules. 46 4. A state, territory or commonwealth of the United States and foreign 47 and domestic corporations as well as officers, employees, and agents of 48 these entities shall not be subject to a cause of action for providing 49 records, information, facilities, or other forms of assistance in 50 accordance with the terms of a warrant, court order, statutory authori- 51 zation, emergency certification, or wiretap order issued pursuant to 52 this article. This does not preclude a cause of action for providing 53 records, information, facilities, or other forms of assistance in a 54 manner that is inconsistent with this article. 55 § 695.25 Search and seizure of electronic devices and electronic commu- 56 nications; annual report.S. 6044 7 1 1. A law enforcement agency or law enforcement officer that obtains 2 electronic communication information pursuant to this article shall make 3 an annual report to the attorney general of this state regarding such 4 information. The report shall be made on or before February first, two 5 thousand eighteen, and on February first of each year thereafter. To the 6 extent such information can be reasonably determined, the report shall 7 include the following: 8 (a) the total number of times electronic information was sought or 9 obtained pursuant to this article; 10 (b) the number of times such information was sought or obtained, and 11 the number of records obtained for each of the following categories the 12 types of electronic information: 13 (i) electronic communication content; 14 (ii) location information; 15 (iii) electronic device information (not including location informa- 16 tion); and 17 (iv) other electronic communication information. 18 (c) for each type of information identified in paragraph (b) of this 19 subdivision: 20 (i) the number of times the information was sought or obtained pursu- 21 ant to: 22 (1) wiretap orders obtained pursuant to this article; 23 (2) search warrants obtained pursuant to this article; and 24 (3) emergency requests subject to subdivision eight of section 695.10 25 of this article. 26 (ii) the total number of individuals whose information was sought or 27 obtained; 28 (iii) the total number of instances in which information was sought or 29 obtained that did not specify a target individual from whom or about 30 whom the information was requested; 31 (iv) for demands or requests issued upon a service provider, the 32 number of such demands or requests complied with in full, partially 33 complied with, and not complied with; 34 (v) the number of times notice to targeted individuals of a warrant, 35 court order, statutory authorization, emergency certification, or wire- 36 tap order issued pursuant to this article was delayed and the average 37 length of the delay; 38 (vi) the number of times records obtained pursuant to a warrant, court 39 order, statutory authorization, emergency certification, or wiretap 40 order issued pursuant to this article were shared with other government 41 entities or any department or agency of the federal government, and the 42 agencies with which such records were shared; 43 (vii) the average period of time for which location information was 44 obtained or received; and 45 (viii) the number of instances in which electronic information sought 46 or obtained pursuant to this article was relevant to a criminal proceed- 47 ing that led to a conviction. 48 2. On or before April first, two thousand nineteen, and each April 49 first thereafter, the attorney general's office shall publish on its 50 internet website a summary aggregating data related to each type of 51 electronic communication identified in paragraphs (a), (b) and (c) of 52 subdivision one of this section by county. 53 3. Nothing in this article shall prohibit or restrict a service 54 provider from producing an annual report summarizing the demands or 55 requests it receives under this article. 56 § 2. This act shall take effect immediately.