S T A T E O F N E W Y O R K
________________________________________________________________________
7919--A
2013-2014 Regular Sessions
I N A S S E M B L Y
June 10, 2013
___________
Introduced by M. of A. RODRIGUEZ -- read once and referred to the
Committee on Codes -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
AN ACT to amend the criminal procedure law, in relation to establishing
the EMAIL privacy act (electronic messaging and individual location)
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. This act shall be known and may be cited as the "EMAIL
privacy act (electronic messaging and individual location)".
S 2. Paragraph (c) of subdivision 1 of section 690.15 of the criminal
procedure law is amended and a new paragraph (d) is added to read as
follows:
(c) A designated or described person[.];
(D) DESIGNATED OR DESCRIBED ELECTRONIC CUSTOMER DATA OR ELECTRONIC
LOCATION INFORMATION HELD IN ELECTRONIC STORAGE, INCLUDING THE CONTENTS
OF AND RECORDS AND OTHER INFORMATION RELATED TO A WIRE COMMUNICATION OR
ELECTRONIC COMMUNICATION HELD IN ELECTRONIC STORAGE. FOR PURPOSES OF
THIS PARAGRAPH, "ELECTRONIC COMMUNICATION" HAS THE MEANING ASSIGNED BY
SECTION 250.00 OF THE PENAL LAW, "ELECTRONIC STORAGE", "WIRE COMMUNI-
CATION", "ELECTRONIC CUSTOMER DATA" AND "ELECTRONIC LOCATION INFORMA-
TION" HAVE THE MEANING ASSIGNED BY SECTION 690.05 OF THIS ARTICLE.
S 3. Subdivision 2 of section 690.05 of the criminal procedure law, as
amended by chapter 504 of the laws of 1991, the opening paragraph as
amended by chapter 424 of the laws of 1998, is amended and a new subdi-
vision 3 is added to read as follows:
2. A search warrant is a court order and process directing a police
officer to conduct:
(a) a search of designated premises, or of a designated vehicle, or of
a designated person, for the purpose of seizing designated property or
kinds of property, and to deliver any property so obtained to the court
which issued the warrant; or
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11338-06-3
A. 7919--A 2
(b) a search of a designated premises for the purpose of searching for
and arresting a person who is the subject of: (i) a warrant of arrest
issued pursuant to this chapter, a superior court warrant of arrest
issued pursuant to this chapter, or a bench warrant for a felony issued
pursuant to this chapter, where the designated premises is the dwelling
of a third party who is not the subject of the arrest warrant; or
(ii) a warrant of arrest issued by any other state or federal court
for an offense which would constitute a felony under the laws of this
state, where the designated premises is the dwelling of a third party
who is not the subject of the arrest warrant[.]; OR
(C) A SEARCH OF DESIGNATED OR DESCRIBED ELECTRONIC CUSTOMER DATA OR
ELECTRONIC LOCATION INFORMATION HELD IN ELECTRONIC STORAGE OR MOBILE
DEVICE, INCLUDING THE CONTENTS OF, AND RECORDS AND OTHER INFORMATION
RELATED TO A WIRE COMMUNICATION OR ELECTRONIC COMMUNICATION HELD IN
ELECTRONIC STORAGE OR MOBILE DEVICE.
3. THE FOLLOWING DEFINITIONS ARE APPLICABLE TO THIS ARTICLE:
(A) "ELECTRONIC STORAGE" MEANS ANY STORAGE OF ELECTRONIC CUSTOMER DATA
IN A COMPUTER, COMPUTER NETWORK, OR COMPUTER SYSTEM, REGARDLESS OF
WHETHER THE DATA IS SUBJECT TO RECALL, FURTHER MANIPULATION, DELETION,
OR TRANSMISSION, AND INCLUDES ANY STORAGE OF A WIRE OR ELECTRONIC COMMU-
NICATION BY AN ELECTRONIC COMMUNICATIONS SERVICE OR A REMOTE COMPUTING
SERVICE.
(B) "WIRE COMMUNICATION" MEANS AN AURAL TRANSFER MADE IN WHOLE OR IN
PART THROUGH THE USE OF FACILITIES FOR THE TRANSMISSION OF COMMUNI-
CATIONS BY THE AID OF WIRE, CABLE, OR OTHER LIKE CONNECTION BETWEEN THE
POINT OF ORIGIN AND THE POINT OF RECEPTION, INCLUDING THE USE OF SUCH A
CONNECTION IN A SWITCHING STATION, FURNISHED OR OPERATED BY A PERSON
AUTHORIZED TO ENGAGE IN PROVIDING OR OPERATING THE FACILITIES FOR THE
TRANSMISSION OF COMMUNICATIONS AS A COMMUNICATIONS COMMON CARRIER. THE
TERM INCLUDES THE ELECTRONIC STORAGE OF A WIRE COMMUNICATION.
(C) "ELECTRONIC CUSTOMER DATA" MEANS DATA OR RECORDS THAT:
(I) ARE IN THE POSSESSION, CARE, CUSTODY, OR CONTROL OF A PROVIDER OF
AN ELECTRONIC COMMUNICATIONS SERVICE OR A REMOTE COMPUTING SERVICE; AND
(II) CONTAIN: (1) INFORMATION REVEALING THE IDENTITY OF CUSTOMERS OF
THE APPLICABLE SERVICE;
(2) INFORMATION ABOUT A CUSTOMER'S USE OF THE APPLICABLE SERVICE;
(3) INFORMATION THAT IDENTIFIES THE RECIPIENT OR DESTINATION OF A WIRE
COMMUNICATION OR ELECTRONIC COMMUNICATION SENT TO OR BY THE CUSTOMER;
(4) THE CONTENT OF A WIRE COMMUNICATION OR ELECTRONIC COMMUNICATION
SENT TO OR BY THE CUSTOMER; AND
(5) ANY DATA STORED BY OR ON BEHALF OF THE CUSTOMER WITH THE APPLICA-
BLE SERVICE PROVIDER.
(D) "ELECTRONIC LOCATION INFORMATION" MEANS ANY INFORMATION THAT
RELATES TO: (I) THE LOCATION OF A CELLULAR TELEPHONE, MOBILE OR OTHER
WIRELESS COMMUNICATIONS DEVICE; AND (II) IS WHOLLY OR PARTLY GENERATED
BY OR DERIVED FROM THE OPERATION OF THE DEVICE.
S 4. The criminal procedure law is amended by adding a new section
690.60 to read as follows:
S 690.60 SEARCH WARRANTS; GOVERNMENT ACCESS TO STORED CUSTOMER DATA,
COMMUNICATIONS AND ELECTRONIC LOCATION INFORMATION.
1. AN AUTHORIZED POLICE OFFICER MAY REQUIRE A PROVIDER OF ELECTRONIC
COMMUNICATIONS SERVICE OR A PROVIDER OF A REMOTE COMPUTING SERVICE TO
DISCLOSE ELECTRONIC CUSTOMER DATA OR ELECTRONIC LOCATION INFORMATION
THAT IS IN ELECTRONIC STORAGE BY OBTAINING A WARRANT.
2. IN EXECUTING A SEARCH WARRANT DIRECTING A PROVIDER OF AN ELECTRONIC
COMMUNICATIONS SERVICE OR A PROVIDER OF A REMOTE COMPUTING SERVICE TO
A. 7919--A 3
DISCLOSE ONLY ELECTRONIC CUSTOMER DATA THAT IS INFORMATION REVEALING THE
IDENTITY OF CUSTOMERS OF THE APPLICABLE SERVICE OR INFORMATION ABOUT A
CUSTOMER'S USE OF THE APPLICABLE SERVICE A POLICE OFFICER NEED NOT GIVE
NOTICE TO THE SUBSCRIBER OR CUSTOMER:
(A) BY OBTAINING AN ADMINISTRATIVE SUBPOENA AUTHORIZED BY STATUTE;
(B) BY OBTAINING A GRAND JURY SUBPOENA;
(C) BY OBTAINING A WARRANT;
(D) BY OBTAINING THE CONSENT OF THE SUBSCRIBER OR CUSTOMER TO THE
DISCLOSURE OF THE DATA;
(E) BY OBTAINING A COURT ORDER; OR
(F) AS OTHERWISE PERMITTED BY APPLICABLE FEDERAL LAW.
3. A PROVIDER OF TELEPHONIC COMMUNICATIONS SERVICE SHALL DISCLOSE TO
AN AUTHORIZED POLICE OFFICER, WITHOUT ANY FORM OF LEGAL PROCESS,
SUBSCRIBER LISTING INFORMATION, INCLUDING NAME, ADDRESS, AND TELEPHONE
NUMBER OR SIMILAR ACCESS CODE THAT:
(A) THE SERVICE PROVIDES TO OTHERS IN THE COURSE OF PROVIDING PUBLICLY
AVAILABLE DIRECTORY OR SIMILAR ASSISTANCE; OR
(B) IS SOLELY FOR USE IN THE DISPATCH OF EMERGENCY VEHICLES AND
PERSONNEL RESPONDING TO A DISTRESS CALL DIRECTED TO AN EMERGENCY
DISPATCH SYSTEM OR WHEN THE INFORMATION IS REASONABLY NECESSARY TO AID
IN THE DISPATCHING OF EMERGENCY VEHICLES AND PERSONNEL FOR THE IMMEDIATE
PREVENTION OF DEATH, PERSONAL INJURY, OR DESTRUCTION OF PROPERTY.
4. A PROVIDER OF TELEPHONIC COMMUNICATIONS SERVICE SHALL PROVIDE AN
AUTHORIZED POLICE OFFICER WITH THE NAME OF THE SUBSCRIBER OF RECORD
WHOSE PUBLISHED TELEPHONE NUMBER IS PROVIDED TO THE SERVICE BY AN
AUTHORIZED POLICE OFFICER.
5. ELECTRONIC LOCATION INFORMATION MAY BE OBTAINED BY AN AUTHORIZED
POLICE OFFICER WITHOUT ANY FORM OF LEGAL PROCESS, IF:
(A) THE DEVICE IS REPORTED STOLEN BY THE OWNER; OR
(B) THERE EXISTS AN IMMEDIATE LIFE-THREATENING SITUATION.
S 5. The criminal procedure law is amended by adding a new section
690.65 to read as follows:
S 690.65 SEARCH WARRANTS; WARRANT ISSUED IN THIS STATE FOR STORED
CUSTOMER DATA, COMMUNICATIONS OR ELECTRONIC LOCATION INFORMA-
TION.
1. THIS SECTION APPLIES TO A WARRANT REQUIRED UNDER SECTION 690.60 OF
THIS ARTICLE TO OBTAIN ELECTRONIC CUSTOMER DATA, INCLUDING THE CONTENTS
OF A WIRE COMMUNICATION, ELECTRONIC COMMUNICATION OR ELECTRONIC LOCATION
INFORMATION.
2. ON THE FILING OF AN APPLICATION BY AN AUTHORIZED POLICE OFFICER, A
DISTRICT JUDGE MAY ISSUE A SEARCH WARRANT UNDER THIS SECTION FOR ELEC-
TRONIC CUSTOMER DATA HELD IN ELECTRONIC STORAGE, INCLUDING THE CONTENTS
OF AND RECORDS AND OTHER INFORMATION RELATED TO A WIRE COMMUNICATION OR
ELECTRONIC COMMUNICATION HELD IN ELECTRONIC STORAGE OR ELECTRONIC
LOCATION INFORMATION, BY A PROVIDER OF AN ELECTRONIC COMMUNICATIONS
SERVICE OR A PROVIDER OF A REMOTE COMPUTING SERVICE DESCRIBED BY SUBDI-
VISION EIGHT OF THIS SECTION, REGARDLESS OF WHETHER THE CUSTOMER DATA IS
HELD AT A LOCATION IN THIS STATE OR AT A LOCATION IN ANOTHER STATE. AN
APPLICATION MADE UNDER THIS SUBDIVISION MUST DEMONSTRATE PROBABLE CAUSE
FOR THE ISSUANCE OF THE WARRANT AND MUST BE SUPPORTED BY THE OATH OR
AFFIRMATION OF THE AUTHORIZED POLICE OFFICER.
3. A SEARCH WARRANT MAY NOT BE ISSUED UNDER THIS SECTION UNLESS THE
APPLICATION REQUIRED BY SECTION 690.35 OF THIS ARTICLE SETS FORTH SUFFI-
CIENT AND SUBSTANTIAL FACTS TO ESTABLISH PROBABLE CAUSE THAT:
(A) A SPECIFIC OFFENSE HAS BEEN COMMITTED; AND
A. 7919--A 4
(B) THE ELECTRONIC CUSTOMER DATA OR ELECTRONIC LOCATION INFORMATION
SOUGHT:
(I) CONSTITUTES EVIDENCE OF THAT OFFENSE OR EVIDENCE THAT A PARTICULAR
PERSON COMMITTED THAT OFFENSE; AND
(II) IS HELD IN ELECTRONIC STORAGE BY THE SERVICE PROVIDER ON WHICH
THE WARRANT IS SERVED UNDER SUBDIVISION SEVEN OF THIS SECTION.
4. ONLY THE ELECTRONIC CUSTOMER DATA OR ELECTRONIC LOCATION INFORMA-
TION DESCRIBED IN THE APPLICATION REQUIRED BY SECTION 690.35 OF THIS
ARTICLE MAY BE SEIZED UNDER THE WARRANT.
5. THE POLICE OFFICER SHALL EXECUTE THE WARRANT NOT LATER THAN THE
TENTH DAY AFTER THE DATE OF ISSUANCE, EXCEPT THAT THE OFFICER SHALL
EXECUTE THE WARRANT WITHIN A SHORTER PERIOD IF SO DIRECTED IN THE
WARRANT BY THE DISTRICT JUDGE. FOR PURPOSES OF THIS SUBDIVISION, A
WARRANT IS EXECUTED WHEN THE WARRANT IS SERVED IN THE MANNER DESCRIBED
BY SUBDIVISION SEVEN OF THIS SECTION.
6. A WARRANT UNDER THIS SECTION MAY BE SERVED ONLY ON A SERVICE
PROVIDER THAT IS A DOMESTIC ENTITY OR A COMPANY OR ENTITY OTHERWISE
DOING BUSINESS IN THIS STATE UNDER A CONTRACT OR A TERMS OF SERVICE
AGREEMENT WITH A RESIDENT OF THIS STATE, IF ANY PART OF THAT CONTRACT OR
AGREEMENT IS TO BE PERFORMED IN THIS STATE. THE SERVICE PROVIDER SHALL
PRODUCE ALL ELECTRONIC CUSTOMER DATA, CONTENTS OF COMMUNICATIONS, ELEC-
TRONIC LOCATION INFORMATION, AND OTHER INFORMATION SOUGHT, REGARDLESS OF
WHERE THE INFORMATION IS HELD AND WITHIN THE PERIOD ALLOWED FOR COMPLI-
ANCE WITH THE WARRANT, AS PROVIDED BY SUBDIVISION EIGHT OF THIS SECTION.
A COURT MAY FIND ANY DESIGNATED OFFICER, DESIGNATED DIRECTOR, OR DESIG-
NATED OWNER OF A COMPANY OR ENTITY IN CONTEMPT OF COURT IF THE PERSON BY
ACT OR OMISSION IS RESPONSIBLE FOR THE FAILURE OF THE COMPANY OR ENTITY
TO COMPLY WITH THE WARRANT WITHIN THE PERIOD ALLOWED FOR COMPLIANCE. THE
FAILURE OF A COMPANY OR ENTITY TO TIMELY DELIVER THE INFORMATION SOUGHT
IN THE WARRANT DOES NOT AFFECT THE ADMISSIBILITY OF THAT EVIDENCE IN A
CRIMINAL PROCEEDING.
7. A SEARCH WARRANT ISSUED UNDER THIS SECTION IS SERVED WHEN THE
AUTHORIZED POLICE OFFICER DELIVERS THE WARRANT BY HAND, BY FACSIMILE
TRANSMISSION, OR, IN A MANNER ALLOWING PROOF OF DELIVERY, BY MEANS OF
THE UNITED STATES MAIL OR A PRIVATE DELIVERY SERVICE TO:
(A) A PERSON SPECIFIED BY SECTION THREE HUNDRED FIVE OF THE BUSINESS
CORPORATION LAW;
(B) THE SECRETARY OF STATE IN THE CASE OF A COMPANY OR ENTITY TO WHICH
SECTION THREE HUNDRED SIX OF THE BUSINESS CORPORATION LAW APPLIES; OR
(C) ANY OTHER PERSON OR ENTITY DESIGNATED TO RECEIVE THE SERVICE OF
PROCESS.
8. THE DISTRICT JUDGE SHALL INDICATE IN THE WARRANT THAT THE DEADLINE
FOR COMPLIANCE BY THE PROVIDER OF AN ELECTRONIC COMMUNICATIONS SERVICE
OR THE PROVIDER OF A REMOTE COMPUTING SERVICE IS THE FIFTEENTH BUSINESS
DAY AFTER THE DATE THE WARRANT IS SERVED IF THE WARRANT IS TO BE SERVED
ON A DOMESTIC ENTITY OR A COMPANY OR ENTITY OTHERWISE DOING BUSINESS IN
THIS STATE, EXCEPT THAT THE DEADLINE FOR COMPLIANCE WITH A WARRANT
SERVED IN ACCORDANCE WITH SECTION THREE HUNDRED SIX OF THE BUSINESS
CORPORATION LAW, MAY BE EXTENDED TO A DATE THAT IS NOT LATER THAN THE
THIRTIETH DAY AFTER THE DATE THE WARRANT IS SERVED. THE JUDGE MAY INDI-
CATE IN A WARRANT THAT THE DEADLINE FOR COMPLIANCE IS EARLIER THAN THE
FIFTEENTH BUSINESS DAY AFTER THE DATE THE WARRANT IS SERVED IF THE OFFI-
CER MAKES A SHOWING AND THE JUDGE FINDS THAT FAILURE TO COMPLY WITH THE
WARRANT BY THE EARLIER DEADLINE WOULD CAUSE SERIOUS JEOPARDY TO AN
INVESTIGATION, CAUSE UNDUE DELAY OF A TRIAL, OR CREATE A MATERIAL RISK
OF:
A. 7919--A 5
(A) DANGER TO THE LIFE OR PHYSICAL SAFETY OF ANY PERSON;
(B) FLIGHT FROM PROSECUTION;
(C) THE TAMPERING WITH OR DESTRUCTION OF EVIDENCE; OR
(D) INTIMIDATION OF POTENTIAL WITNESSES.
9. IF THE AUTHORIZED POLICE OFFICER SERVING THE WARRANT UNDER THIS
SECTION ALSO DELIVERS AN APPLICATION FORM TO THE PROVIDER OF AN ELEC-
TRONIC COMMUNICATIONS SERVICE OR THE PROVIDER OF A REMOTE COMPUTING
SERVICE RESPONDING TO THE WARRANT, AND THE POLICE OFFICER ALSO NOTIFIES
THE PROVIDER IN WRITING THAT AN EXECUTED APPLICATION IS REQUIRED, THEN
THE PROVIDER SHALL VERIFY THE AUTHENTICITY OF THE CUSTOMER DATA,
CONTENTS OF COMMUNICATIONS, ELECTRONIC LOCATION INFORMATION, AND OTHER
INFORMATION PRODUCED IN COMPLIANCE WITH THE WARRANT BY INCLUDING WITH
THE INFORMATION THE APPLICATION FORM COMPLETED AND SWORN TO BY A PERSON
WHO IS A CUSTODIAN OF THE INFORMATION OR A PERSON OTHERWISE QUALIFIED TO
ATTEST TO ITS AUTHENTICITY THAT STATES THAT THE INFORMATION WAS STORED
IN THE COURSE OF REGULARLY CONDUCTED BUSINESS OF THE PROVIDER AND SPECI-
FIES WHETHER IT IS THE REGULAR PRACTICE OF THE PROVIDER TO STORE THAT
INFORMATION.
10. ON A SERVICE PROVIDER'S COMPLIANCE WITH A WARRANT UNDER THIS
SECTION, AN AUTHORIZED POLICE OFFICER SHALL FILE A RETURN OF THE WARRANT
AND A COPY OF THE INVENTORY OF THE SEIZED PROPERTY AS REQUIRED UNDER
SECTION 690.50 OF THIS ARTICLE.
11. THE DISTRICT JUDGE SHALL HEAR AND DECIDE ANY MOTION TO QUASH THE
WARRANT NOT LATER THAN THE FIFTH BUSINESS DAY AFTER THE DATE THE SERVICE
PROVIDER FILES THE MOTION. THE JUDGE MAY ALLOW THE SERVICE PROVIDER TO
APPEAR AT THE HEARING BY TELECONFERENCE.
12. A PROVIDER OF AN ELECTRONIC COMMUNICATIONS SERVICE OR A PROVIDER
OF A REMOTE COMPUTING SERVICE RESPONDING TO A WARRANT ISSUED UNDER THIS
SECTION MAY REQUEST AN EXTENSION OF THE PERIOD FOR COMPLIANCE WITH THE
WARRANT IF EXTENUATING CIRCUMSTANCES EXIST TO JUSTIFY THE EXTENSION. THE
DISTRICT JUDGE SHALL GRANT A REQUEST FOR AN EXTENSION BASED ON THOSE
CIRCUMSTANCES IF:
(A) THE AUTHORIZED POLICE OFFICER WHO APPLIED FOR THE WARRANT OR
ANOTHER APPROPRIATE AUTHORIZED POLICE OFFICER AGREES TO THE EXTENSION;
OR
(B) THE DISTRICT JUDGE FINDS THAT THE NEED FOR THE EXTENSION OUTWEIGHS
THE LIKELIHOOD THAT THE EXTENSION WILL CAUSE AN ADVERSE CIRCUMSTANCE
DESCRIBED BY SUBDIVISION EIGHT OF THIS SECTION.
S 6. The criminal procedure law is amended by adding a new section
690.70 to read as follows:
S 690.70 SEARCH WARRANTS; WARRANT ISSUED IN ANOTHER STATE FOR STORED
CUSTOMER DATA, COMMUNICATIONS OR ELECTRONIC LOCATION INFORMA-
TION.
ANY DOMESTIC ENTITY THAT PROVIDES ELECTRONIC COMMUNICATIONS SERVICES
OR REMOTE COMPUTING SERVICES TO THE PUBLIC SHALL COMPLY WITH A WARRANT
ISSUED IN ANOTHER STATE AND SEEKING INFORMATION DESCRIBED IN SUBDIVISION
TWO OF SECTION 690.65 OF THIS ARTICLE, IF THE WARRANT IS SERVED ON THE
ENTITY IN A MANNER EQUIVALENT TO SERVICE OF PROCESS REQUIRED BY SUBDIVI-
SION EIGHT OF SECTION 690.65 OF THIS ARTICLE.
S 7. The criminal procedure law is amended by adding a new section
690.75 to read as follows:
S 690.75 SEARCH WARRANTS; BACK-UP PRESERVATION FOR STORED CUSTOMER DATA,
COMMUNICATIONS OR ELECTRONIC LOCATION INFORMATION.
1. A SUBPOENA OR COURT ORDER FOR DISCLOSURE OF CERTAIN ELECTRONIC
CUSTOMER DATA OR ELECTRONIC LOCATION INFORMATION HELD IN ELECTRONIC
STORAGE BY A PROVIDER OF AN ELECTRONIC COMMUNICATIONS SERVICE OR A
A. 7919--A 6
PROVIDER OF A REMOTE COMPUTING SERVICE MAY REQUIRE THAT PROVIDER TO
CREATE A COPY OF THE CUSTOMER DATA OR ELECTRONIC LOCATION INFORMATION
SOUGHT BY THE SUBPOENA OR COURT ORDER FOR THE PURPOSE OF PRESERVING THAT
DATA. THE PROVIDER MAY NOT INFORM THE SUBSCRIBER OR CUSTOMER WHOSE DATA
IS BEING SOUGHT THAT THE SUBPOENA OR COURT ORDER HAS BEEN ISSUED. THE
PROVIDER SHALL CREATE THE COPY WITHIN A REASONABLE TIME AS DETERMINED BY
THE COURT ISSUING THE SUBPOENA OR COURT ORDER.
2. THE PROVIDER OF AN ELECTRONIC COMMUNICATIONS SERVICE OR THE PROVID-
ER OF A REMOTE COMPUTING SERVICE SHALL IMMEDIATELY NOTIFY THE AUTHORIZED
POLICE OFFICER WHO PRESENTED THE SUBPOENA OR COURT ORDER REQUESTING THE
COPY WHEN THE COPY HAS BEEN CREATED.
3. THE AUTHORIZED POLICE OFFICER SHALL NOTIFY THE SUBSCRIBER OR
CUSTOMER WHOSE ELECTRONIC CUSTOMER DATA OR ELECTRONIC LOCATION INFORMA-
TION IS THE SUBJECT OF THE SUBPOENA OR COURT ORDER OF THE CREATION OF
THE COPY NOT LATER THAN THREE DAYS AFTER THE DATE OF THE RECEIPT OF THE
NOTIFICATION FROM THE APPLICABLE PROVIDER THAT THE COPY WAS CREATED.
4. THE PROVIDER OF AN ELECTRONIC COMMUNICATIONS SERVICE OR THE PROVID-
ER OF A REMOTE COMPUTING SERVICE SHALL RELEASE THE COPY TO THE REQUEST-
ING AUTHORIZED POLICE OFFICER NOT EARLIER THAN THE FOURTEENTH DAY AFTER
THE DATE OF THE POLICE OFFICER'S NOTICE TO THE SUBSCRIBER OR CUSTOMER IF
THE PROVIDER HAS NOT:
(A) INITIATED PROCEEDINGS TO CHALLENGE THE REQUEST OF THE POLICE OFFI-
CER FOR THE COPY; OR
(B) RECEIVED NOTICE FROM THE SUBSCRIBER OR CUSTOMER THAT THE SUBSCRIB-
ER OR CUSTOMER HAS INITIATED PROCEEDINGS TO CHALLENGE THE REQUEST.
5. THE PROVIDER OF AN ELECTRONIC COMMUNICATIONS SERVICE OR THE PROVID-
ER OF A REMOTE COMPUTING SERVICE MAY NOT DESTROY OR PERMIT THE
DESTRUCTION OF THE COPY UNTIL THE ELECTRONIC CUSTOMER DATA OR ELECTRONIC
LOCATION INFORMATION HAS BEEN DELIVERED TO THE APPLICABLE LAW ENFORCE-
MENT AGENCY OR UNTIL THE RESOLUTION OF ANY COURT PROCEEDINGS, INCLUDING
APPEALS OF ANY PROCEEDINGS, RELATING TO THE SUBPOENA OR COURT ORDER
REQUESTING THE CREATION OF THE COPY, WHICHEVER OCCURS LAST.
6. AN AUTHORIZED POLICE OFFICER WHO REASONABLY BELIEVES THAT NOTIFICA-
TION TO THE SUBSCRIBER OR CUSTOMER OF THE SUBPOENA OR COURT ORDER WOULD
RESULT IN THE DESTRUCTION OF OR TAMPERING WITH ELECTRONIC CUSTOMER DATA
OR ELECTRONIC LOCATION INFORMATION SOUGHT MAY REQUEST THE CREATION OF A
COPY OF THE DATA. THE POLICE OFFICER'S BELIEF IS NOT SUBJECT TO CHAL-
LENGE BY THE SUBSCRIBER OR CUSTOMER OR BY A PROVIDER OF AN ELECTRONIC
COMMUNICATIONS SERVICE OR A PROVIDER OF A REMOTE COMPUTING SERVICE.
7. (A) A SUBSCRIBER OR CUSTOMER WHO RECEIVES NOTIFICATION AS DESCRIBED
IN SUBDIVISION THREE OF THIS SECTION MAY FILE A WRITTEN MOTION TO QUASH
THE SUBPOENA OR VACATE THE COURT ORDER IN THE COURT THAT ISSUED THE
SUBPOENA OR COURT ORDER NOT LATER THAN THE FOURTEENTH DAY AFTER THE DATE
OF THE RECEIPT OF THE NOTICE. THE MOTION MUST CONTAIN AN AFFIDAVIT OR
SWORN STATEMENT STATING:
(I) THAT THE APPLICANT IS A SUBSCRIBER OR CUSTOMER OF THE PROVIDER OF
AN ELECTRONIC COMMUNICATIONS SERVICE OR THE PROVIDER OF A REMOTE COMPUT-
ING SERVICE FROM WHICH THE ELECTRONIC CUSTOMER DATA OR ELECTRONIC
LOCATION INFORMATION HELD IN ELECTRONIC STORAGE FOR THE SUBSCRIBER OR
CUSTOMER HAS BEEN SOUGHT; AND
(II) THE APPLICANT'S REASONS FOR BELIEVING THAT THE CUSTOMER DATA OR
ELECTRONIC LOCATION INFORMATION SOUGHT IS NOT RELEVANT TO A LEGITIMATE
LAW ENFORCEMENT INQUIRY OR THAT THERE HAS NOT BEEN SUBSTANTIAL COMPLI-
ANCE WITH THE PROVISIONS OF THIS ARTICLE IN SOME OTHER RESPECT.
(B) THE SUBSCRIBER OR CUSTOMER SHALL GIVE WRITTEN NOTICE TO THE
PROVIDER OF AN ELECTRONIC COMMUNICATIONS SERVICE OR THE PROVIDER OF A
A. 7919--A 7
REMOTE COMPUTING SERVICE OF THE CHALLENGE TO THE SUBPOENA OR COURT
ORDER. THE AUTHORIZED POLICE OFFICER REQUESTING THE SUBPOENA OR COURT
ORDER MUST BE SERVED A COPY OF THE PAPERS FILED BY PERSONAL DELIVERY OR
BY REGISTERED OR CERTIFIED MAIL.
8. (A) THE COURT SHALL ORDER THE AUTHORIZED POLICE OFFICER TO FILE A
SWORN RESPONSE TO THE MOTION FILED BY THE SUBSCRIBER OR CUSTOMER IF THE
COURT DETERMINES THAT THE SUBSCRIBER OR CUSTOMER HAS COMPLIED WITH THE
REQUIREMENTS OF SUBDIVISION SEVEN OF THIS SECTION. ON REQUEST OF THE
POLICE OFFICER, THE COURT MAY PERMIT THE RESPONSE TO BE FILED IN CAMERA.
THE COURT MAY CONDUCT ANY ADDITIONAL PROCEEDINGS THE COURT CONSIDERS
APPROPRIATE IF THE COURT IS UNABLE TO MAKE A DETERMINATION ON THE MOTION
ON THE BASIS OF THE PARTIES' INITIAL ALLEGATIONS AND RESPONSE.
(B) THE COURT SHALL RULE ON THE MOTION AS SOON AFTER THE FILING OF THE
OFFICER'S RESPONSE AS PRACTICABLE. THE COURT SHALL DENY THE MOTION IF
THE COURT FINDS THAT THE APPLICANT IS NOT THE SUBSCRIBER OR CUSTOMER
WHOSE ELECTRONIC CUSTOMER DATA OR ELECTRONIC LOCATION INFORMATION HELD
IN ELECTRONIC STORAGE IS THE SUBJECT OF THE SUBPOENA OR COURT ORDER OR
THAT THERE IS REASON TO BELIEVE THAT THE POLICE OFFICER'S INQUIRY IS
LEGITIMATE AND THAT THE CUSTOMER DATA SOUGHT IS RELEVANT TO THAT
INQUIRY. THE COURT SHALL QUASH THE SUBPOENA OR VACATE THE ORDER IF THE
COURT FINDS THAT THE APPLICANT IS THE SUBSCRIBER OR CUSTOMER WHOSE DATA
IS THE SUBJECT OF THE SUBPOENA OR COURT ORDER AND THAT THERE IS NOT A
REASON TO BELIEVE THAT THE DATA IS RELEVANT TO A LEGITIMATE LAW ENFORCE-
MENT INQUIRY OR THAT THERE HAS NOT BEEN SUBSTANTIAL COMPLIANCE WITH THE
PROVISIONS OF THIS ARTICLE.
(C) A COURT ORDER DENYING A MOTION OR APPLICATION UNDER THIS SECTION
IS NOT A FINAL ORDER AND NO INTERLOCUTORY APPEAL MAY BE TAKEN FROM THE
DENIAL.
S 8. The criminal procedure law is amended by adding a new section
690.80 to read as follows:
S 690.80 SEARCH WARRANTS; PRECLUSION OF NOTIFICATION FOR STORED CUSTOMER
DATA, COMMUNICATIONS OR ELECTRONIC LOCATION INFORMATION.
1. AN AUTHORIZED POLICE OFFICER SEEKING ELECTRONIC CUSTOMER DATA OR
ELECTRONIC LOCATION INFORMATION MAY APPLY TO THE COURT FOR AN ORDER
COMMANDING THE SERVICE PROVIDER TO WHOM A WARRANT, SUBPOENA, OR COURT
ORDER IS DIRECTED NOT TO DISCLOSE TO ANY PERSON THE EXISTENCE OF THE
WARRANT, SUBPOENA, OR COURT ORDER. THE ORDER IS EFFECTIVE FOR THE PERIOD
THE COURT CONSIDERS APPROPRIATE. THE COURT SHALL ENTER THE ORDER IF THE
COURT DETERMINES THAT THERE IS REASON TO BELIEVE THAT NOTIFICATION OF
THE EXISTENCE OF THE WARRANT, SUBPOENA, OR COURT ORDER WILL HAVE AN
ADVERSE RESULT.
2. IN THIS SECTION, AN "ADVERSE RESULT" MEANS:
(A) ENDANGERING THE LIFE OR PHYSICAL SAFETY OF AN INDIVIDUAL;
(B) FLIGHT FROM PROSECUTION;
(C) DESTRUCTION OF OR TAMPERING WITH EVIDENCE;
(D) INTIMIDATION OF A POTENTIAL WITNESS; OR
(E) OTHERWISE SERIOUSLY JEOPARDIZING AN INVESTIGATION OR UNDULY DELAY-
ING A TRIAL.
S 9. The criminal procedure law is amended by adding a new section
690.85 to read as follows:
S 690.85 SEARCH WARRANTS; REIMBURSEMENT OF COSTS FOR STORED CUSTOMER
DATA, COMMUNICATIONS OR ELECTRONIC LOCATION INFORMATION.
1. EXCEPT AS PROVIDED BY SUBDIVISION THREE OF THIS SECTION, AN AUTHOR-
IZED POLICE OFFICER WHO OBTAINS INFORMATION UNDER THIS ARTICLE SHALL
REIMBURSE THE PERSON ASSEMBLING OR PROVIDING THE INFORMATION FOR ALL
COSTS THAT ARE REASONABLY NECESSARY AND THAT HAVE BEEN DIRECTLY INCURRED
A. 7919--A 8
IN SEARCHING FOR, ASSEMBLING, REPRODUCING, OR OTHERWISE PROVIDING THE
INFORMATION. THESE COSTS INCLUDE COSTS ARISING FROM NECESSARY DISRUPTION
OF NORMAL OPERATIONS OF AN ELECTRONIC COMMUNICATIONS SERVICE OR REMOTE
COMPUTING SERVICE IN WHICH THE INFORMATION MAY BE STORED.
2. THE AUTHORIZED POLICE OFFICER AND THE PERSON PROVIDING THE INFORMA-
TION MAY AGREE ON THE AMOUNT OF REIMBURSEMENT. IF THERE IS NO AGREEMENT,
THE COURT THAT ISSUED THE ORDER FOR PRODUCTION OF THE INFORMATION SHALL
DETERMINE THE AMOUNT. IF NO COURT ORDER WAS ISSUED FOR PRODUCTION OF
THE INFORMATION, THE COURT BEFORE WHICH THE CRIMINAL PROSECUTION RELAT-
ING TO THE INFORMATION WOULD BE BROUGHT SHALL DETERMINE THE AMOUNT.
3. SUBDIVISION ONE OF THIS SECTION DOES NOT APPLY TO RECORDS OR OTHER
INFORMATION MAINTAINED BY A COMMUNICATIONS COMMON CARRIER THAT RELATE TO
TELEPHONE TOLL RECORDS OR TELEPHONE LISTINGS UNLESS THE COURT DETERMINES
THAT THE AMOUNT OF INFORMATION REQUIRED WAS UNUSUALLY VOLUMINOUS OR THAT
AN UNDUE BURDEN WAS IMPOSED ON THE PROVIDER.
S 10. The criminal procedure law is amended by adding a new section
690.90 to read as follows:
S 690.90 SEARCH WARRANTS; STORED CUSTOMER DATA, COMMUNICATIONS OR ELEC-
TRONIC LOCATION INFORMATION; NO CAUSE OF ACTION.
A SUBSCRIBER OR CUSTOMER OF A PROVIDER OF AN ELECTRONIC COMMUNICATIONS
SERVICE OR A PROVIDER OF A REMOTE COMPUTING SERVICE DOES NOT HAVE A
CAUSE OF ACTION AGAINST A PROVIDER OR ITS OFFICERS, EMPLOYEES, OR AGENTS
OR AGAINST OTHER SPECIFIED PERSONS FOR PROVIDING INFORMATION, FACILI-
TIES, OR ASSISTANCE AS REQUIRED BY A COURT ORDER, WARRANT, SUBPOENA, OR
CERTIFICATION UNDER THIS ARTICLE.
S 11. The criminal procedure law is amended by adding a new section
690.95 to read as follows:
S 690.95 SEARCH WARRANTS; STORED CUSTOMER DATA, COMMUNICATIONS OR ELEC-
TRONIC LOCATION INFORMATION; CAUSE OF ACTION.
EXCEPT AS PROVIDED BY SECTION 690.90 OF THIS ARTICLE, A PROVIDER OF AN
ELECTRONIC COMMUNICATIONS SERVICE OR A PROVIDER OF A REMOTE COMPUTING
SERVICE, OR A SUBSCRIBER OR CUSTOMER OF THAT PROVIDER, THAT IS AGGRIEVED
BY A VIOLATION OF THIS ARTICLE HAS A CIVIL CAUSE OF ACTION IF THE
CONDUCT CONSTITUTING THE VIOLATION WAS COMMITTED KNOWINGLY OR INTEN-
TIONALLY AND IS ENTITLED TO:
1. INJUNCTIVE RELIEF;
2. A REASONABLE ATTORNEY'S FEE AND OTHER LITIGATION COSTS REASONABLY
INCURRED; AND
3. THE SUM OF THE ACTUAL DAMAGES SUFFERED AND ANY PROFITS MADE BY THE
VIOLATOR AS A RESULT OF THE VIOLATION OR ONE THOUSAND DOLLARS, WHICHEVER
IS MORE.
S 12. The criminal procedure law is amended by adding a new section
690.96 to read as follows:
S 690.96 SEARCH WARRANTS; ANNUAL REPORT OF WARRANTS AND ORDERS.
1. NO LATER THAN JANUARY FIFTEENTH OF EACH YEAR, A PROVIDER OF AN
ELECTRONIC COMMUNICATION SERVICE OR A PROVIDER OF A REMOTE COMPUTING
SERVICE DOING BUSINESS IN THIS STATE SHALL REPORT TO THE OFFICE OF
PUBLIC SAFETY THE FOLLOWING INFORMATION FOR THE PRECEDING CALENDAR YEAR,
DISAGGREGATED BY EACH LAW ENFORCEMENT AGENCY IN THIS STATE MAKING THE
APPLICABLE REQUESTS:
(A) THE NUMBER OF REQUESTS MADE FOR PEN REGISTER OR TRAP AND TRACE
INFORMATION;
(B) THE NUMBER OF REQUESTS MADE FOR ESN READER INFORMATION;
(C) THE NUMBER OF REQUESTS MADE FOR LOCATION INFORMATION;
(D) THE NUMBER OF INDIVIDUALS WHOSE LOCATION INFORMATION WAS
DISCLOSED; AND
A. 7919--A 9
(E) THE AMOUNT THAT EACH LAW ENFORCEMENT AGENCY WAS BILLED BY THE
COMMUNICATION COMMON CARRIER OR ELECTRONIC COMMUNICATIONS SERVICE FOR
EACH REQUEST MADE UNDER PARAGRAPH (A), (B) OR (C) OF THIS SUBDIVISION.
2. NO LATER THAN THE THIRTIETH DAY AFTER THE DATE OF EXPIRATION OF A
WARRANT OR ORDER ISSUED UNDER THIS ARTICLE OR AN ORDER EXTENDING THE
PERIOD OF A WARRANT OR ORDER ISSUED UNDER THIS ARTICLE, OR NO LATER THAN
THE THIRTIETH DAY AFTER THE DATE THE COURT DENIES AN APPLICATION FOR A
WARRANT OR ORDER UNDER THIS ARTICLE, THE COURT SHALL SUBMIT TO THE
OFFICE OF PUBLIC SAFETY THE FOLLOWING INFORMATION, AS APPLICABLE:
(A) THE RECEIPT OF AN APPLICATION FOR A WARRANT OR ORDER UNDER THIS
ARTICLE;
(B) THE TYPE OF WARRANT OR ORDER FOR WHICH THE APPLICATION WAS MADE;
(C) WHETHER ANY APPLICATION FOR AN ORDER OF EXTENSION WAS GRANTED,
GRANTED AS MODIFIED BY THE COURT, OR DENIED;
(D) THE PERIOD OF MONITORING AUTHORIZED BY THE WARRANT OR ORDER AND
THE NUMBER AND DURATION OF ANY EXTENSIONS OF THE WARRANT OR ORDER;
(E) THE OFFENSE UNDER INVESTIGATION, AS SPECIFIED IN THE APPLICATION
FOR THE WARRANT OR ORDER OR AN EXTENSION OF THE WARRANT OR ORDER; AND
(F) THE LAW ENFORCEMENT AGENCY OR PROSECUTOR THAT SUBMITTED AN APPLI-
CATION FOR THE WARRANT OR ORDER OR AN EXTENSION OF THE WARRANT OR ORDER.
3. NO LATER THAN JANUARY FIFTEENTH OF EACH YEAR, EACH PROSECUTOR THAT
SUBMITS AN APPLICATION FOR A WARRANT OR ORDER OR AN EXTENSION OF A
WARRANT OR ORDER UNDER THIS ARTICLE SHALL SUBMIT TO THE OFFICE OF PUBLIC
SAFETY THE FOLLOWING INFORMATION FOR THE PRECEDING CALENDAR YEAR;
(A) THE INFORMATION REQUIRED TO BE SUBMITTED BY A COURT WITH RESPECT
TO EACH APPLICATION SUBMITTED BY THE PROSECUTOR FOR THE WARRANT OR ORDER
OR AN EXTENSION OF THE WARRANT OR ORDER;
(B) A GENERAL DESCRIPTION OF INFORMATION COLLECTED UNDER EACH WARRANT
OR ORDER THAT WAS ISSUED BY THE COURT, INCLUDING THE APPROXIMATE NUMBER
OF INDIVIDUALS FOR WHOM LOCATION INFORMATION WAS INTERCEPTED AND THE
APPROXIMATE DURATION OF THE MONITORING OF THE LOCATION INFORMATION OF
THOSE INDIVIDUALS;
(C) THE NUMBER OF ARRESTS MADE AS A RESULT OF INFORMATION OBTAINED
UNDER A WARRANT OR ORDER ISSUED UNDER THIS ARTICLE;
(D) THE NUMBER OF CRIMINAL TRIALS COMMENCED AS A RESULT OF INFORMATION
OBTAINED UNDER A WARRANT OR ORDER ISSUED UNDER THIS ARTICLE; AND
(E) THE NUMBER OF CONVICTIONS OBTAINED AS A RESULT OF INFORMATION
OBTAINED UNDER A WARRANT OR ORDER ISSUED UNDER THIS ARTICLE.
4. INFORMATION SUBMITTED TO THE OFFICE OF PUBLIC SAFETY UNDER THIS
SECTION IS PUBLIC INFORMATION AND SUBJECT TO DISCLOSURE.
5. NO LATER THAN MARCH FIRST OF EACH YEAR, THE OFFICE OF PUBLIC SAFETY
SHALL SUBMIT A REPORT TO THE GOVERNOR, THE STATE ATTORNEY GENERAL, THE
SPEAKER OF THE ASSEMBLY, AND THE CHAIRS OF THE STANDING COMMITTEES OF
THE SENATE AND ASSEMBLY WITH PRIMARY JURISDICTION OVER CRIMINAL JUSTICE.
THE REPORT MUST CONTAIN THE FOLLOWING INFORMATION FOR THE PRECEDING
CALENDAR YEAR:
(A) AN ASSESSMENT OF THE EXTENT OF TRACKING OR MONITORING BY LAW
ENFORCEMENT AGENCIES OF PEN REGISTER, TRAP AND TRACE, ESN READER, AND
LOCATION INFORMATION;
(B) A COMPARISON OF THE RATIO OF THE NUMBER OF APPLICATIONS FOR
WARRANTS OR ORDERS MADE UNDER THIS ARTICLE TO THE NUMBER OF ARRESTS AND
CONVICTIONS RESULTING FROM INFORMATION OBTAINED UNDER A WARRANT OR ORDER
ISSUED UNDER THIS ARTICLE;
(C) IDENTIFICATION OF THE TYPES OF OFFENSES INVESTIGATED UNDER A
WARRANT OR ORDER ISSUED UNDER THIS ARTICLE; AND
A. 7919--A 10
(D) WITH RESPECT TO BOTH STATE AND LOCAL JURISDICTIONS, AN ESTIMATE OF
THE TOTAL COST OF CONDUCTING INVESTIGATIONS UNDER A WARRANT OR ORDER
ISSUED UNDER THIS ARTICLE.
S 13. The criminal procedure law is amended by adding a new section
690.97 to read as follows:
S 690.97 SEARCH WARRANTS; STORED CUSTOMER DATA, COMMUNICATIONS AND ELEC-
TRONIC LOCATION INFORMATION AND USE IN A COURT OF LAW.
STORED CUSTOMER DATA, COMMUNICATIONS AND ELECTRONIC LOCATION INFORMA-
TION OBTAINED WITHOUT ANY FORM OF LEGAL PROCESS AND NOT PURSUANT TO
SECTION 690.60 OF THIS ARTICLE SHALL BE INADMISSIBLE IN A COURT OF LAW.
S 14. This act shall take effect immediately.