New York A 1880: Relates to creating the New York electronic communications privacy act; search and seizure of electronic devices and electronic communications

Bill Text

STATE OF NEW YORK
________________________________________________________________________
1880--A
Cal. No. 11
2023-2024 Regular Sessions
IN ASSEMBLY
January 23, 2023
___________
Introduced by M. of A. DINOWITZ, JOYNER, L. ROSENTHAL, STECK, WALKER,
WEPRIN, VANEL, KELLES -- Multi-Sponsored by -- M. of A. COOK, DAVILA,
GLICK, RAMOS, ROZIC, SIMON -- read once and referred to the Committee
on Codes -- reported from committee, advanced to a third reading,
amended and ordered reprinted, retaining its place on the order of
third reading
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;
EXPLANATION--Matter in (underscored) is new; matter in bracketsitalics
[ ] is old law to be omitted.
LBD01024-03-3

A. 1880--A 2
1 (c) destruction of or tampering with evidence;
2 (d) intimidation of potential witnesses; or
3 (e) serious jeopardy to an investigation.
4 2. "Authorized possessor" means the person in possession of an elec-
5 tronic device when that person is the owner of the device or has been
6 authorized to possess the device by the owner of the device.
7 3. "Electronic communication" means the transmission of signs,
8 signals, writings, images, sounds, data, or intelligence of any nature
9 in whole or in part by a wire, radio, electromagnetic, photoelectric, or
10 photo-optical system.
11 4. "Electronic communication information" means information related to
12 an electronic communication or the use of an electronic communication
13 service including, but not limited to the contents, sender, recipients,
14 or format of an electronic communication; the precise or approximate
15 location of the sender or recipients of an electronic communication at
16 any time during such communication; the time or date such communication
17 was created, sent, or received and information pertaining to an individ-
18 ual or device involved in the communication including but not limited to
19 an internet protocol address. Electronic communication information does
20 not include subscriber information as defined in this article and does
21 not include information in the public domain.
22 5. "Electronic communication service" means a service that provides
23 subscribers to or users of such service the ability to send or receive
24 an electronic communication as defined in this article, including a
25 service that acts as an intermediary in the transmission of electronic
26 communications, or that stores electronic communication information.
27 6. "Electronic device" means a device that stores, generates, or tran-
28 smits information in electronic form.
29 7. "Electronic device information" means information stored in or
30 generated through the operation of an electronic device, including
31 information related to the location of such device at any time.
32 8. "Electronic information" means electronic communication information
33 or electronic device information.
34 9. "Law enforcement agency" means any agency which is empowered by law
35 to conduct an investigation or to make an arrest for an offense under
36 the penal law, and an agency which is authorized by law to prosecute or
37 participate in the prosecution of an offense under the penal law.
38 10. "Law enforcement officer" means any public servant who is
39 empowered by law to conduct an investigation of or to make an arrest for
40 an offense under the penal law, and any attorney authorized by law to
41 prosecute or participate in the prosecution of an offense under the
42 penal law.
43 11. "Location information" means information regarding the general or
44 specific location of an electronic device.
45 12. "Service provider" means a person or entity that provides an elec-
46 tronic communication service.
47 13. "Specific consent" means consent provided directly to a law
48 enforcement agency or l