Assembly Bill A6379A

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

                                 6379--A

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                             March 26, 2013
                               ___________

Introduced  by M. of A. KELLNER -- read once and referred to the Commit-
  tee on Consumer Affairs and Protection -- committee  discharged,  bill
  amended,  ordered reprinted as amended and recommitted to said commit-
  tee

AN ACT to amend the general business law,  in  relation  to  prohibiting
  hidden mobile device spying and stalking

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The general business law is amended by adding a new article
29-CCC to read as follows:

                             ARTICLE 29-CCC
                       BAN ON HIDDEN MOBILE DEVICE
                      SPYING AND STALKING PROGRAMS

SECTION 540. DEFINITIONS.
        541. PROHIBITIONS.
        542. ENFORCEMENT.
  S 540. DEFINITIONS. AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL
HAVE THE FOLLOWING MEANINGS:
  1. "PORTABLE ELECTRONIC DEVICE" SHALL MEAN ANY HAND-HELD MOBILE  TELE-
PHONE,   AS  DEFINED  BY  SUBDIVISION  ONE  OF  SECTION  TWELVE  HUNDRED
TWENTY-FIVE-C OF THE VEHICLE AND TRAFFIC LAW, PERSONAL DIGITAL ASSISTANT
(PDA), HANDHELD DEVICE WITH MOBILE DATA ACCESS, LAPTOP COMPUTER,  PAGER,
BROADBAND PERSONAL COMMUNICATION DEVICE, TWO-WAY MESSAGING DEVICE, ELEC-
TRONIC GAME, OR PORTABLE COMPUTING DEVICE."
  2. "INTERNET CAPABLE" SHALL MEAN BEING CAPABLE OF ACCESSING THE INTER-
NATIONAL  COMPUTER NETWORK OF BOTH FEDERAL AND NON-FEDERAL INTEROPERABLE
PACKET SWITCHED DATA NETWORKS.
  3. "ELECTRONIC MESSAGE" SHALL MEAN A  MESSAGE  SENT  OR  POSTED  TO  A
UNIQUE  DESTINATION,  COMMONLY  EXPRESSED  AS  A  STRING  OF CHARACTERS,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09813-03-3
              

A. 6379--A                          2

CONSISTING OF A UNIQUE USER NAME OR MAILBOX (COMMONLY REFERRED TO AS THE
"LOCAL PART") AND A REFERENCE TO AN INTERNET DOMAIN  (COMMONLY  REFERRED
TO  AS  THE  "DOMAIN PART"), WHETHER OR NOT DISPLAYED, TO WHICH AN ELEC-
TRONIC MESSAGE CAN BE SENT, DELIVERED OR POSTED.
  S 541. PROHIBITIONS. 1. BAN ON SECRET MOBILE SPYING PROGRAMS. IT SHALL
BE  UNLAWFUL  TO  SELL,  PROVIDE,  OR  KNOWINGLY  FACILITATE THE SALE OR
PROVISION OF ANY COMPUTER PROGRAM THAT CAN BE INSTALLED ONTO AN INTERNET
CAPABLE  PORTABLE  ELECTRONIC  DEVICE  THAT  AUTOMATICALLY  COPIES   AND
FORWARDS  THE  CONTENT OF AN ELECTRONIC MESSAGE SENT OR RECEIVED BY SUCH
DEVICE TO AN ELECTRONIC ADDRESS OR PHONE NUMBER THAT IS  NOT  THE  ELEC-
TRONIC  ADDRESS  OR  PHONE NUMBER ORIGINALLY USED IN THE TRANSMISSION OF
THE ELECTRONIC MESSAGE UNLESS  SUCH  PROGRAM  (A)  OBTAINS  THE  EXPRESS
CONSENT  OF  THE INDIVIDUAL WHO IS USING THE PORTABLE ELECTRONIC DEVICE;
(B) DISPLAYS AN INDICATOR ON THE DEVICE THAT IS REASONABLY LIKELY TO  BE
DISCOVERED  BY  THE  USER  THAT SUCH PROGRAM HAS BEEN INSTALLED; AND (C)
AFTER BEING INITIALLY INSTALLED, SUCH PROGRAM PROMINENTLY DISPLAYS,  NOT
EARLIER  THAN TWENTY-FOUR HOURS AND NOT LATER THAN SEVEN DAYS AFTER  THE
TIME AN INDIVIDUAL PROVIDES EXPRESS CONSENT, A NOTIFICATION ON THE  HOME
OR  TURN-ON  SCREEN  OF  THE  DEVICE  ALERTING  THE USER THAT ELECTRONIC
MESSAGES BEING SENT OR RECEIVED ARE SUBSEQUENTLY COPIED AND  TRANSMITTED
TO  AN  ELECTRONIC  ADDRESS  OR  PHONE NUMBER THAT IS NOT THE ELECTRONIC
ADDRESS OR PHONE NUMBER ORIGINALLY USED IN THE TRANSMISSION OF THE ELEC-
TRONIC MESSAGE.
  2. BAN ON SECRET MOBILE STALKING PROGRAMS. IT  SHALL  BE  UNLAWFUL  TO
SELL,  PROVIDE,  OR  KNOWINGLY  FACILITATE  THE SALE OR PROVISION OF ANY
COMPUTER PROGRAM THAT CAN BE INSTALLED ONTO AN INTERNET CAPABLE PORTABLE
ELECTRONIC DEVICE THAT  AUTOMATICALLY  TRANSMITS  THE  LOCATION  OF  THE
DEVICE  SO  THAT  IT  MAY  BE  ACCESSED  FROM A DIFFERENT DEVICE IF SUCH
PROGRAM: (A) FAILS TO OBTAIN THE EXPRESS CONSENT OF THE  INDIVIDUAL  WHO
IS USING THE PORTABLE ELECTRONIC DEVICE; (B) FAILS TO DISPLAY AN INDICA-
TOR ON THE DEVICE THAT IS REASONABLY LIKELY TO BE DISCOVERED BY THE USER
THAT SUCH PROGRAM HAS BEEN INSTALLED; OR (C) DISABLES OR HIDES NOTIFICA-
TIONS ON THE DEVICE THAT SUCH DEVICE IS ACCESSING THE GLOBAL POSITIONING
SYSTEM OR OTHER LOCATION ENABLING SYSTEM.
  3.  FOR  PURPOSES OF SUBDIVISION ONE OR TWO OF THIS SECTION, A PROGRAM
SHALL BE DEEMED REASONABLY LIKELY TO BE DISCOVERED BY THE USER IF  AFTER
INSTALLATION  IT  DISPLAYS  AN  ICON OR INDICATOR OF ITS PRESENCE ON THE
DEVICE IN THE SAME FORM AND MANNER AS A PROGRAM, OTHER THAN THE  OPERAT-
ING  SYSTEM  OF THE DEVICE OR A PART THEREOF, THAT IS SEPARATELY SOLD OR
OFFERED BY THE COMPANY THAT DESIGNED SUCH  OPERATING  SYSTEM,  AND  SUCH
DISPLAY  CANNOT  BE  MATERIALLY ALTERED OR DELETED BY THE USER FOR SEVEN
DAYS AFTER BEING INSTALLED.
  4. EXCEPTIONS. THIS SECTION  SHALL  NOT  APPLY  TO:  (A)  ANY  PROGRAM
PROVIDED  OR  SOLD  SOLELY  TO  BUSINESSES FOR THE PURPOSE OF CONDUCTING
LAWFUL BUSINESS ACTIVITIES, OR (B) PROVIDED OR SOLD SOLELY TO GOVERNMENT
AGENCIES.
  S 542. ENFORCEMENT. THE ATTORNEY GENERAL  MAY  BRING  A  CIVIL  ACTION
AGAINST  ANY  PERSON THAT VIOLATES THIS ARTICLE TO ENJOIN THE VIOLATION,
AND MAY RECOVER A CIVIL PENALTY UP TO ONE THOUSAND DOLLARS PER VIOLATION
OF THIS ARTICLE OR, FOR A PATTERN OR PRACTICE OF SUCH VIOLATIONS, UP  TO
FIVE THOUSAND DOLLARS PER VIOLATION.
  S  2.  This  act shall take effect on the ninetieth day after it shall
have become a law.