S T A T E O F N E W Y O R K
I N S E N A T E
March 19, 2014
Introduced by Sen. AVELLA -- read twice and ordered printed, and when
printed to be committed to the Committee on Consumer Protection
AN ACT to amend the general business law, in relation to the installa-
tion of a technological solution on an advanced mobile communication
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Legislative intent. The legislature finds that:
(a) According to the federal communications commission (FCC), one in
three robberies in the United States involves the theft of a mobile
communications device, making it the number one property crime in the
country. Many of these robberies often turn violent with some resulting
in the loss of life.
(b) The FCC estimates that between thirty to forty percent of United
States street theft involves a mobile device. In fact, more than forty
percent of all robberies in New York city involve smartphones and other
(c) Consumer reports projects that one point six million Americans had
their smartphones stolen in 2012.
(d) According to the New York Times, one hundred thirteen smartphones
are lost or stolen every minute in the United States.
(e) Major cities are home to the highest concentrations of cell phone
theft, and officials in New York and California have been pushing for a
cellphone kill switch in those states since April 2012. According to New
York state attorney general Eric Schneiderman, the United States senate
proposal would force the mobile industry to "stop dragging its feet and
join us in protecting consumers."
(f) In April of 2012, U.S. senator Charles Schumer, D-New York, and
New York city police commissioner Ray Kelly announced that the major
U.S. cell phone carriers and the federal communications commission have
agreed to set up a national database to track reported stolen phones.
Senator Schumer also introduced a bill called the mobile device theft
deterrence act, which proposes a five-year prison sentence for tampering
with the ID numbers of a stolen cell phone.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
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(g) According to press reports, the international trafficking of
stolen smartphones by organized criminal organizations has grown expo-
nentially in recent years because of how profitable the trade has
(h) Replacement of lost and stolen mobile communications devices was
an estimated thirty-billion-dollar business in 2012 according to studies
conducted by mobile communications security experts. Additionally,
industry publications indicate that the four largest providers of
commercial mobile radio services made an estimated seven billion eight
hundred million dollars from theft and loss insurance products in 2013.
(i) Technological solutions that render stolen mobile communications
devices useless already exist, but the industry has been slow to adopt
(j) In order to be effective, these technological solutions need to be
ubiquitous, as thieves cannot distinguish between those mobile communi-
cations devices that have the solutions enabled and those that do not.
As a result, the technological solution should be able to withstand a
hard reset or operating system downgrade, and be enabled by default,
with consumers being given the option to affirmatively elect to disable
(k) Manufacturers of advanced mobile communications devices and
commercial mobile radio service providers have a responsibility to
ensure their customers are not targeted as a result of purchasing their
products and services.
(l) It is the intent of the legislature to require all smartphones and
other advanced mobile communications devices offered for sale in New
York to come with a technological solution enabled, in order to deter
theft and protect consumers.
(m) It is the further intent of the legislature to prohibit any term
or condition in a service contract between a customer and a commercial
mobile radio service provider that requires or encourages the customer
to disable the technological solution that renders the customer's smart-
phone or other advanced communications device useless if stolen.
S 2. The general business law is amended by adding a new section 399-
zzzz to read as follows:
S 399-ZZZZ. ADVANCED MOBILE COMMUNICATIONS DEVICES. 1. DEFINITIONS.
FOR PURPOSES OF THIS SECTION, THE FOLLOWING TERMS HAVE THE FOLLOWING
(A) "ADVANCED MOBILE COMMUNICATIONS DEVICE" MEANS AN ELECTRONIC DEVICE
THAT IS REGULARLY HAND HELD WHEN OPERATED THAT ENABLES THE USER TO
ENGAGE IN VOICE COMMUNICATIONS USING MOBILE TELEPHONY SERVICE, VOICE
OVER INTERNET PROTOCOL, OR INTERNET PROTOCOL ENABLED SERVICE, AND TO
CONNECT TO THE INTERNET, AND INCLUDES WHAT ARE COMMONLY KNOWN AS SMART-
PHONES AND TABLETS.
(B) "COMMERCIAL MOBILE RADIO SERVICE" MEANS "COMMERCIAL MOBILE
SERVICE," AS DEFINED IN SUBSECTION (D) OF SECTION 332 OF TITLE 47 OF THE
UNITED STATES CODE AND AS FURTHER SPECIFIED BY THE FEDERAL COMMUNI-
CATIONS COMMISSION IN PARTS 20, 22, 24, AND 25 OF TITLE 47 OF THE CODE
OF FEDERAL REGULATIONS, AND INCLUDES "MOBILE TELEPHONY SERVICE."
(C) "ESSENTIAL FEATURES" OF AN ADVANCED MOBILE COMMUNICATIONS DEVICE
INCLUDE THE ABILITY TO USE THE DEVICE FOR VOICE COMMUNICATIONS AND THE
ABILITY TO CONNECT TO THE INTERNET, INCLUDING THE ABILITY TO ACCESS AND
USE MOBILE SOFTWARE APPLICATIONS COMMONLY KNOWN AS "APPS."
(D) "HARD RESET" MEANS THE RESTORATION OF AN ADVANCED MOBILE COMMUNI-
CATIONS DEVICE TO THE STATE IT WAS IN WHEN IT LEFT THE FACTORY, AND
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REFERS TO ANY ACT OF RETURNING A DEVICE TO THAT STATE, INCLUDING PROC-
ESSES COMMONLY TERMED A FACTORY RESET OR MASTER RESET.
(E) "INTERNET PROTOCOL ENABLED SERVICE" OR "IP ENABLED SERVICE" MEANS
ANY SERVICE, CAPABILITY, FUNCTIONALITY, OR APPLICATION USING EXISTING
INTERNET PROTOCOL, OR ANY SUCCESSOR INTERNET PROTOCOL, THAT ENABLES AN
END USER TO SEND OR RECEIVE A COMMUNICATION IN EXISTING INTERNET PROTO-
COL FORMAT, OR ANY SUCCESSOR INTERNET PROTOCOL FORMAT THROUGH A BROAD-
BAND CONNECTION, REGARDLESS OF WHETHER THE COMMUNICATION IS VOICE, DATA,
(F) "MOBILE TELEPHONY SERVICE" MEANS COMMERCIALLY AVAILABLE INTERCON-
NECTED MOBILE PHONE SERVICES THAT PROVIDE ACCESS TO THE PUBLIC SWITCHED
TELEPHONE NETWORK (PSTN) VIA MOBILE COMMUNICATION DEVICES EMPLOYING
RADIO WAVE TECHNOLOGY TO TRANSMIT CALLS, INCLUDING CELLULAR RADIOTELE-
PHONE, BROADBAND PERSONAL COMMUNICATIONS SERVICES (PCS), AND DIGITAL
SPECIALIZED MOBILE RADIO (SMR). "MOBILE TELEPHONY SERVICES" DOES NOT
INCLUDE MOBILE SATELLITE TELEPHONE SERVICES OR MOBILE DATA SERVICES USED
EXCLUSIVELY FOR THE DELIVERY OF NON-VOICE INFORMATION TO A MOBILE
(G) "SOLD IN NEW YORK" MEANS THAT THE ADVANCED MOBILE COMMUNICATIONS
DEVICE IS SOLD AT RETAIL, AND NOT FOR RESALE, FROM A LOCATION WITHIN THE
STATE, OR THE ADVANCED MOBILE COMMUNICATIONS DEVICE IS SOLD AND SHIPPED
TO AN END-USE CONSUMER AT AN ADDRESS WITHIN THE STATE.
(H) "VOICE OVER INTERNET PROTOCOL" OR "VOIP" MEANS VOICE COMMUNI-
CATIONS SERVICE THAT DOES ALL OF THE FOLLOWING:
(I) USES INTERNET PROTOCOL OR A SUCCESSOR PROTOCOL TO ENABLE
REAL-TIME, TWO-WAY VOICE COMMUNICATION THAT ORIGINATES FROM, OR TERMI-
NATES AT, THE USER'S LOCATION IN INTERNET PROTOCOL OR A SUCCESSOR PROTO-
(II) REQUIRES A BROADBAND CONNECTION FROM THE USER'S LOCATION.
(III) PERMITS A USER GENERALLY TO RECEIVE A CALL THAT ORIGINATES ON
THE PUBLIC SWITCHED TELEPHONE NETWORK AND TO TERMINATE A CALL TO THE
PUBLIC SWITCHED TELEPHONE NETWORK.
(IV) A SERVICE THAT USES ORDINARY CUSTOMER PREMISES EQUIPMENT WITH NO
ENHANCED FUNCTIONALLY THAT ORIGINATES AND TERMINATES ON THE PUBLIC
SWITCHED TELEPHONE NETWORK, UNDERGOES NO NET PROTOCOL CONVERSION, AND
PROVIDES NO ENHANCED FUNCTIONALITY TO END USERS DUE TO THE PROVIDER'S
USE OF INTERNET PROTOCOL TECHNOLOGY IS NOT A VOIP SERVICE.
2. TECHNOLOGICAL SOLUTION. (A) ANY ADVANCED MOBILE COMMUNICATIONS
DEVICE THAT IS SOLD IN NEW YORK ON OR AFTER JANUARY FIRST, TWO THOUSAND
FIFTEEN, SHALL INCLUDE A TECHNOLOGICAL SOLUTION THAT CAN RENDER THE
ESSENTIAL FEATURES OF THE DEVICE INOPERABLE WHEN THE DEVICE IS NOT IN
THE POSSESSION OF THE RIGHTFUL OWNER. A TECHNOLOGICAL SOLUTION MAY
CONSIST OF SOFTWARE, HARDWARE, OR A COMBINATION OF BOTH SOFTWARE AND
HARDWARE, BUT SHALL BE ABLE TO WITHSTAND A HARD RESET. NO ADVANCED
MOBILE COMMUNICATIONS DEVICE MAY BE SOLD IN NEW YORK WITHOUT THE TECHNO-
LOGICAL SOLUTION ENABLED.
(B) THE RIGHTFUL OWNER OF AN ADVANCED MOBILE COMMUNICATIONS DEVICE MAY
AFFIRMATIVELY ELECT TO DISABLE THE TECHNOLOGICAL SOLUTION AFTER SALE.
HOWEVER, THE PHYSICAL ACTS NECESSARY TO DISABLE THE TECHNOLOGICAL
SOLUTION MAY ONLY BE PERFORMED BY THE END-USE CONSUMER OR A PERSON
SPECIFICALLY SELECTED BY THE END-USE CONSUMER TO DISABLE THE TECHNOLOG-
ICAL SOLUTION AND SHALL NOT BE PHYSICALLY PERFORMED BY ANY RETAIL SELLER
OF THE ADVANCED MOBILE COMMUNICATIONS DEVICE.
(C) A PROVIDER OF COMMERCIAL MOBILE RADIO SERVICE SHALL NOT INCLUDE A
TERM OR CONDITION IN A SERVICE CONTRACT WITH AN END-USE CONSUMER WITH AN
ADDRESS WITHIN THE STATE THAT REQUIRES OR ENCOURAGES THE CONSUMER OR
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RIGHTFUL OWNER TO DISABLE THE TECHNOLOGICAL SOLUTION THAT RENDERS THE
CONSUMER'S SMARTPHONE OR OTHER ADVANCED COMMUNICATIONS DEVICE USELESS IF
3. PENALTIES. (A) A PERSON OR RETAIL ENTITY SELLING AN ADVANCED COMMU-
NICATIONS DEVICE IN NEW YORK IN VIOLATION OF SUBDIVISION TWO SHALL BE
SUBJECT TO A CIVIL PENALTY OF NOT LESS THAN FIVE HUNDRED DOLLARS, NOR
MORE THAN TWO THOUSAND FIVE HUNDRED DOLLARS, PER DEVICE SOLD IN NEW
(B) A PROVIDER OF COMMERCIAL MOBILE RADIO SERVICE THAT INCLUDES A TERM
OR CONDITION IN A SERVICE CONTRACT WITH AN END-USE CONSUMER WITH AN
ADDRESS WITHIN THE STATE IN VIOLATION OF PARAGRAPH (C) OF SUBDIVISION
TWO OF THIS SECTION, SHALL BE SUBJECT TO A CIVIL PENALTY OF NOT LESS
THAN FIVE HUNDRED DOLLARS, NOR MORE THAN TWO THOUSAND FIVE HUNDRED
DOLLARS, PER SERVICE CONTRACT WITH AN END-USE CONSUMER WITH AN ADDRESS
WITHIN NEW YORK.
S 3. This act shall take effect immediately.