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

                                   793

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                             January 7, 2015
                               ___________

Introduced  by  M.  of  A.  RODRIGUEZ  --  read once and referred to the
  Committee on Codes

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.
                                                           LBD00762-01-5

              

A. 793                              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. 793                              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. 793                              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. 793                              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. 793                              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. 793                              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. 793                              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. 793                              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. 793                             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.