S T A T E O F N E W Y O R K
________________________________________________________________________
8055
2015-2016 Regular Sessions
I N A S S E M B L Y
June 5, 2015
___________
Introduced by M. of A. RYAN -- read once and referred to the Committee
on Codes
AN ACT to amend the criminal procedure law, in relation to cell site
simulator devices
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 1 and 3 of section 700.05 of the criminal
procedure law, as amended by chapter 744 of the laws of 1988, are
amended and two new subdivisions 11 and 12 are added to read as follows:
1. "Eavesdropping" means "wiretapping", "mechanical overhearing of
conversation," or the "intercepting or accessing of an electronic commu-
nication", as those terms are defined in section 250.00 of the penal
law, but does not include the use of a pen register or trap and trace
device when authorized pursuant to article 705 of this chapter. THE
TERM "EAVESDROPPING" INCLUDES THE USE OF A CELL SITE SIMULATOR DEVICE.
3. "Intercepted communication" means (a) a telephonic or telegraphic
communication which was intentionally overheard or recorded by a person
other than the sender or receiver thereof, without the consent of the
sender or receiver, by means of any instrument, device or equipment, or
(b) a conversation or discussion which was intentionally overheard or
recorded, without the consent of at least one party thereto, by a person
not present thereat, by means of any instrument, device or equipment; or
(c) an electronic communication which was intentionally intercepted or
accessed, as that term is defined in section 250.00 of the penal law,
INCLUDING BY USE OF A CELL SITE SIMULATOR DEVICE. The term "contents,"
when used with respect to a communication, includes any information
concerning the identity of the parties to such communications, and the
existence, substance, purport, or meaning of that communication. The
term "communication" includes conversation and discussion.
11. "CELL SITE SIMULATOR DEVICE" MEANS A DEVICE THAT TRANSMITS OR
RECEIVES RADIO WAVES FOR THE PURPOSE OF CONDUCTING ONE OR MORE OF THE
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11501-01-5
A. 8055 2
FOLLOWING OPERATIONS: (A) IDENTIFYING, LOCATING, OR TRACKING THE MOVE-
MENTS OF A COMMUNICATIONS DEVICE; (B) INTERCEPTING, OBTAINING, ACCESS-
ING, OR FORWARDING THE COMMUNICATIONS, STORED DATA, OR METADATA OF A
COMMUNICATIONS DEVICE; (C) AFFECTING THE HARDWARE OR SOFTWARE OPERATIONS
OR FUNCTIONS OF A COMMUNICATIONS DEVICE; (D) FORCING TRANSMISSIONS FROM
OR CONNECTIONS TO A COMMUNICATIONS DEVICE; (E) DENYING A COMMUNICATIONS
DEVICE ACCESS TO OTHER COMMUNICATIONS DEVICES, COMMUNICATIONS PROTOCOLS,
OR SERVICES; OR (F) SPOOFING OR SIMULATING A COMMUNICATIONS DEVICE, CELL
TOWER, CELL SITE, OR SERVICE, INCLUDING, BUT NOT LIMITED TO, AN INTERNA-
TIONAL MOBILE SUBSCRIBER IDENTITY CATCHER OR OTHER INVASIVE CELL PHONE
OR TELEPHONE SURVEILLANCE OR EAVESDROPPING DEVICE THAT MIMICS A CELL
PHONE TOWER AND SENDS OUT SIGNALS TO CAUSE CELL PHONES IN THE AREA TO
TRANSMIT THEIR LOCATIONS, IDENTIFYING INFORMATION, AND COMMUNICATIONS
CONTENT, OR A PASSIVE INTERCEPTION DEVICE OR DIGITAL ANALYZER THAT DOES
NOT SEND SIGNALS TO A COMMUNICATIONS DEVICE UNDER SURVEILLANCE.
12. "COMMUNICATIONS DEVICE" MEANS ANY DEVICE THAT TRANSMITS OR
RECEIVES RADIO WAVES, AND IS CAPABLE OF SENDING OR RECEIVING COMMUNI-
CATIONS. THIS DEFINITION INCLUDES, BUT IS NOT LIMITED TO, CELL PHONES,
AIRCARDS, TABLETS, AND LAPTOPS.
S 2. Subdivision 2 of section 700.10 of the criminal procedure law, as
amended by chapter 744 of the laws of 1988, is amended to read as
follows:
2. No eavesdropping or video surveillance warrant may authorize or
approve the interception of any communication or the conducting of any
video surveillance for any period longer than is necessary to achieve
the objective of the authorization, or in any event longer than thirty
days, OR FOR A WARRANT AUTHORIZING USE OF A CELL SITE SIMULATOR DEVICE,
LONGER THAN SEVEN DAYS. Such thirty day OR SEVEN DAY period shall begin
on the date designated in the warrant as the effective date, which date
may be no later than ten days after the warrant is issued.
S 3. Paragraph (b) of subdivision 2 of section 700.20 of the criminal
procedure law, as amended by chapter 744 of the laws of 1988, is amended
and a new paragraph (g) is added to read as follows:
(b) A full and complete statement of the facts and circumstances
relied upon by the applicant, to justify his belief that an eavesdrop-
ping or video surveillance warrant should be issued, including (i) a
statement of facts establishing probable cause to believe that a partic-
ular designated offense has been, is being, or is about to be committed,
(ii) a particular description of the nature and location of the facili-
ties from which or the place where the communication is to be inter-
cepted or the video surveillance is to be conducted, TO THE EXTENT KNOWN
FOR A WARRANT AUTHORIZING USE OF A CELL SITE SIMULATOR DEVICE, (iii) a
particular description of the type of the communications sought to be
intercepted or of the observations sought to be made, and (iv) the iden-
tity of the person, if known, committing such designated offense and
whose communications are to be intercepted or who is to be the subject
of the video surveillance; and
(G) FOR AN APPLICATION FOR A WARRANT AUTHORIZING USE OF A CELL SITE
SIMULATOR DEVICE, THE APPLICATION MUST SPECIFY: (I) THE IDENTITY OF THE
PERSON, IF KNOWN, WHO POSSESSES THE DEVICE TO BE TARGETED BY THE CELL
SITE SIMULATOR DEVICE, (II) THE TELEPHONE NUMBER OR OTHER UNIQUE
SUBSCRIBER ACCOUNT NUMBER IDENTIFYING THE WIRE OR ELECTRONIC COMMUNI-
CATIONS SERVICE ACCOUNT USED BY THE DEVICE TO BE TARGETED BY THE CELL
SITE SIMULATOR DEVICE AND THE IDENTITY OF THE PERSON, IF KNOWN, WHO IS
SUBSCRIBED TO THAT ACCOUNT, (III) THE TYPE OF DEVICE, AND THE COMMUNI-
CATIONS PROTOCOLS BEING USED BY THE DEVICE, TO WHICH THE CELL SITE SIMU-
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LATOR DEVICE IS TO BE ATTACHED OR USED, (IV) THE GEOGRAPHIC AREA THAT
WILL BE COVERED BY THE CELL SITE SIMULATOR DEVICE, (V) ALL CATEGORIES OF
METADATA, DATA, OR INFORMATION TO BE COLLECTED BY THE CELL SITE SIMULA-
TOR DEVICE FROM THE DEVICE TO BE TARGETED INCLUDING, BUT NOT LIMITED TO,
CALL RECORDS AND GEOLOCATION INFORMATION, (VI) WHETHER OR NOT THE CELL
SITE SIMULATOR DEVICE WILL INCIDENTALLY COLLECT METADATA, DATA, OR
INFORMATION FROM ANY PARTIES OR DEVICES NOT SPECIFIED IN THE WARRANT,
AND IF SO, WHAT CATEGORIES OF INFORMATION OR METADATA WILL BE COLLECTED,
AND (VII) ANY DISRUPTIONS TO ACCESS OR USE OF A COMMUNICATIONS OR INTER-
NET ACCESS NETWORK THAT MAY BE CREATED BY USE OF THE CELL SITE SIMULATOR
DEVICE.
S 4. Subdivisions 3 and 7 of section 700.30 of the criminal procedure
law, as amended by chapter 744 of the laws of 1988, are amended and two
new subdivisions 10 and 11 are added to read as follows:
3. The nature and location of the communications facilities as to
which, or the place where, authority to intercept or conduct video
surveillance is granted, TO THE EXTENT KNOWN FOR A WARRANT AUTHORIZING
USE OF A CELL SITE SIMULATOR DEVICE; and
7. A provision that the authorization to intercept or conduct video
surveillance shall be executed as soon as practicable, shall be
conducted in such a way as to minimize the interception of communi-
cations or the making of observations not otherwise subject to eaves-
dropping or video surveillance under this article, and must terminate
upon attainment of the authorized objective, or in any event in thirty
days, OR IN SEVEN DAYS FOR A WARRANT AUTHORIZING USE OF A CELL SITE
SIMULATOR DEVICE; and
10. FOR AN ORDER AUTHORIZING USE OF A CELL SITE SIMULATOR DEVICE, (I)
THE IDENTITY OF THE PERSON, IF KNOWN, WHO POSSESSES THE DEVICE TO BE
TARGETED BY THE CELL SITE SIMULATOR DEVICE, (II) THE TELEPHONE NUMBER OR
OTHER UNIQUE SUBSCRIBER ACCOUNT NUMBER IDENTIFYING THE WIRE OR ELECTRON-
IC COMMUNICATIONS SERVICE ACCOUNT USED BY THE DEVICE TO BE TARGETED BY
THE CELL SITE SIMULATOR DEVICE AND THE IDENTITY OF THE PERSON, IF KNOWN,
WHO IS SUBSCRIBED TO THAT ACCOUNT, (III) THE TYPE OF DEVICE, AND THE
COMMUNICATIONS PROTOCOLS BEING USED BY THE DEVICE, TO WHICH THE CELL
SITE SIMULATOR DEVICE IS TO BE ATTACHED OR USED, (IV) THE GEOGRAPHIC
AREA THAT WILL BE COVERED BY THE CELL SITE SIMULATOR DEVICE, (V) ALL
CATEGORIES OF METADATA, DATA, OR INFORMATION TO BE COLLECTED BY THE CELL
SITE SIMULATOR DEVICE FROM THE DEVICE TO BE TARGETED INCLUDING, BUT NOT
LIMITED TO, CALL RECORDS AND GEOLOCATION INFORMATION, (VI) WHETHER OR
NOT THE CELL SITE SIMULATOR DEVICE WILL INCIDENTALLY COLLECT METADATA,
DATA, OR INFORMATION FROM ANY PARTIES OR DEVICES NOT SPECIFIED IN THE
WARRANT, AND IF SO, WHAT CATEGORIES OF INFORMATION OR METADATA WILL BE
COLLECTED, AND (VII) ANY DISRUPTIONS TO ACCESS OR USE OF A COMMUNI-
CATIONS OR INTERNET ACCESS NETWORK THAT MAY BE CREATED BY USE OF THE
CELL SITE SIMULATOR DEVICE; AND
11. AN ORDER AUTHORIZING EAVESDROPPING THROUGH USE OF A CELL SITE
SIMULATOR DEVICE MUST INCLUDE A PROVISION DIRECTING THAT THE LAW
ENFORCEMENT AGENCY (I) TAKE ALL STEPS NECESSARY TO LIMIT THE COLLECTION
OF ANY INFORMATION OR METADATA TO THE TARGET SPECIFIED IN THE WARRANT,
(II) TAKE ALL STEPS NECESSARY TO PERMANENTLY DELETE ANY INFORMATION OR
METADATA COLLECTED FROM ANY PARTY NOT SPECIFIED IN THE APPLICABLE
WARRANT IMMEDIATELY FOLLOWING SUCH COLLECTION AND MUST NOT TRANSMIT,
USE, OR RETAIN SUCH INFORMATION OR METADATA FOR ANY PURPOSE WHATSOEVER,
AND (III) DELETE ANY INFORMATION OR METADATA COLLECTED FROM THE TARGET
SPECIFIED IN THE WARRANT WITHIN THIRTY DAYS IF THERE IS NO LONGER PROBA-
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BLE CAUSE TO SUPPORT THE BELIEF THAT SUCH INFORMATION OR METADATA IS
EVIDENCE OF A CRIME.
S 5. Subdivision 3 of section 700.35 of the criminal procedure law, as
amended by chapter 744 of the laws of 1988, is amended to read as
follows:
3. The contents of any communication intercepted or of any observa-
tion made by any means authorized by this article must, if possible AND
UNLESS SUBJECT TO DELETION UNDER SUBDIVISION ELEVEN OF SECTION 700.30,
be recorded on tape or wire or other comparable device. The recording
of the contents of any such communication or observation must be done in
such way as will protect the recording from editing or other alter-
ations.
S 6. Section 700.40 if the criminal procedure law, as amended by chap-
ter 744 of the laws of 1988, is amended to read as follows:
S 700.40 Eavesdropping and video surveillance warrants; order of exten-
sion.
At any time prior to the expiration of an eavesdropping or video
surveillance warrant, the applicant may apply to the issuing justice,
or, if he is unavailable, to another justice, for an order of extension.
The period of extension shall be no longer than the justice deems neces-
sary to achieve the purposes for which it was granted and in no event
longer than thirty days, OR SEVEN DAYS FOR A WARRANT AUTHORIZING USE OF
A CELL SITE SIMULATOR DEVICE. The application for an order of extension
must conform in all respects to the provisions of section 700.20 and, in
addition, must contain a statement setting forth the results thus far
obtained from the interception, or a reasonable explanation of the fail-
ure to obtain such results. The provisions of sections 700.15 and
700.25 are applicable in the determination of such application. The
order of extension must conform in all respects to the provisions of
section 700.30. In the execution of such order of extension the
provisions of section 700.35 are applicable.
S 7. Subdivision 4 of section 710.10 of the criminal procedure law, as
amended by chapter 744 of the laws of 1988, is amended to read as
follows:
4. "Eavesdropping" means "wiretapping", "mechanical overhearing of a
conversation," or "intercepting or accessing of an electronic communi-
cation," as those terms are defined in section 250.00 of the penal law.
THE TERM "EAVESDROPPING" INCLUDES THE USE OF A CELL SITE SIMULATOR
DEVICE.
S 8. This act shall take effect immediately.