senate Bill S6850

Amended

Relates to smart phone device antitheft protection

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 19 / Mar / 2014
    • REFERRED TO CONSUMER PROTECTION
  • 13 / May / 2014
    • AMEND (T) AND RECOMMIT TO CONSUMER PROTECTION
  • 13 / May / 2014
    • PRINT NUMBER 6850A
  • 12 / Jun / 2014
    • AMEND AND RECOMMIT TO CONSUMER PROTECTION
  • 12 / Jun / 2014
    • PRINT NUMBER 6850B
  • 16 / Jun / 2014
    • AMEND (T) AND RECOMMIT TO CONSUMER PROTECTION
  • 16 / Jun / 2014
    • PRINT NUMBER 6850C

Summary

Relates to a smart phone antitheft protection; establishes requirements for the acquisition and resale of wireless communications devices.

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Bill Details

Versions:
S6850
S6850A
S6850B
S6850C
Legislative Cycle:
2013-2014
Current Committee:
Senate Consumer Protection
Law Section:
General Business Law
Laws Affected:
Add ยง399-zzzz, Gen Bus L

Sponsor Memo

BILL NUMBER:S6850

TITLE OF BILL: An act to amend the general business law, in relation
to the installation of a technological solution on an advanced mobile
communication device

PURPOSE OF THE BILL: This bill would require that any advanced mobile
communications device, as defined, that is sold in New York, include a
technological solution, which may consist of software, hardware, or
both software and hardware, that can render inoperable the essential
features of the device, as defined, when the device is not in the
possession of the rightful owner.

SUMMARY OF PROVISIONS:

Section 1: The bill requires 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. The bill includes a clause 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
smartphone or other advanced communications device useless if stolen.

Section 2: Establishes that section 399-zzzz be added to the general
business law, which states any advanced mobile communications device
that is sold on or after January 1, 2015 will 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. The section also permits rightful owners of advanced mobile
communications devices to choose to disable the technological solution
after sale. Any violators of this section will be subject to a civil
penalty of not less than $500 and no more than $2500.

Section 3: Establishes the effective date.

JUSTIFICATION: According to the Federal Communications Commission,
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. 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 cell phones. Replacement of lost or
stolen mobile communications devices was an estimated thirty-billion
dollar business in 2012, and the four largest providers of mobile
radio services made an estimated seven billion eight hundred million
dollars from theft and loss insurance products in 2013. With robberies
of smartphones reaching an all-time high, New York should utilize the
readily available solution to the problem. The "kill switches" will
combat surging smartphone theft across the state by reducing the
incentive and ability criminals have to make money off the stolen
devices.

In order to deter criminals from stealing phones from consumers, there
needs to be a way to render stolen phones worthless. Currently the
only way this is possible is to make the phones unusable, and


therefore unable to be profited from on the secondhand market.
Utilizing kill switch technology ensures this is possible while
maintaining the safety and integrity of the victim/consumer. In
addition, there should be no inclination on the part of the consumer
to turn off the kill switch and to ensure this; it has been written
into the bill that no provider may attempt to entice the consumer in
any way to turn it off.

PRIOR LEGISLATIVE HISTORY: Assembly Bill A8984/2014 (Titone)

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.

EFFECTIVE DATE: This act shall take effect immediately.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  6850

                            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
  device

  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
cell phones.
  (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.
                                                           LBD14099-01-4

S. 6850                             2

  (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
become.
  (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
them.
  (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
this protection.
  (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
MEANINGS:
  (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

S. 6850                             3

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,
OR VIDEO.
  (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
DEVICE.
  (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-
COL.
  (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

S. 6850                             4

RIGHTFUL  OWNER  TO  DISABLE THE TECHNOLOGICAL SOLUTION THAT RENDERS THE
CONSUMER'S SMARTPHONE OR OTHER ADVANCED COMMUNICATIONS DEVICE USELESS IF
STOLEN.
  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
YORK.
  (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.

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