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S T A T E O F N E W Y O R K
________________________________________________________________________
8093
2015-2016 Regular Sessions
I N A S S E M B L Y
June 8, 2015
___________
Introduced by M. of A. TITONE -- read once and referred to the Committee
on Consumer Affairs and Protection
AN ACT to amend the general business law, in relation to the manufacture
and sale of smartphones that are capable of being decrypted and
unlocked by the manufacturer
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 section
399-k to read as follows:
S 399-K. SMARTPHONES. 1. FOR THE PURPOSES OF THIS SECTION, THE FOLLOW-
ING TERMS HAVE THE FOLLOWING MEANINGS:
(A) "SMARTPHONE" MEANS A CELLULAR RADIO TELEPHONE OR OTHER MOBILE
VOICE COMMUNICATIONS HANDSET DEVICE THAT INCLUDES THE FOLLOWING
FEATURES:
I. UTILIZES A MOBILE OPERATING SYSTEM.
II. POSSESSES THE CAPABILITY TO UTILIZE MOBILE SOFTWARE APPLICATIONS,
ACCESS AND BROWSE THE INTERNET, UTILIZE TEXT MESSAGING, UTILIZE DIGITAL
VOICE SERVICE, AND SEND AND RECEIVE EMAIL.
III. HAS WIRELESS NETWORK CONNECTIVITY.
IV. IS CAPABLE OF OPERATING ON A LONG-TERM EVOLUTION NETWORK OR
SUCCESSOR WIRELESS DATA NETWORK COMMUNICATION STANDARDS.
(B) "SOLD IN NEW YORK," OR ANY VARIATION THEREOF, MEANS THAT THE
SMARTPHONE IS SOLD AT RETAIL FROM A LOCATION WITHIN THE STATE, OR THE
SMARTPHONE IS SOLD AND SHIPPED TO AN END-USE CONSUMER AT AN ADDRESS
WITHIN THE STATE. "SOLD IN NEW YORK" DOES NOT INCLUDE A SMARTPHONE THAT
IS RESOLD IN THE STATE ON THE SECONDHAND MARKET OR THAT IS CONSIGNED AND
HELD AS COLLATERAL ON A LOAN.
(C) "LEASED IN NEW YORK," OR ANY VARIATION THEREOF, MEANS THAT THE
SMARTPHONE IS CONTRACTED FOR A SPECIFIED PERIOD OF TIME TO AN END-USE
CONSUMER AT AN ADDRESS WITHIN THE STATE.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10855-01-5
A. 8093 2
2. ANY SMARTPHONE THAT IS MANUFACTURED ON OR AFTER JANUARY FIRST, TWO
THOUSAND SIXTEEN, AND SOLD OR LEASED IN NEW YORK, SHALL BE CAPABLE OF
BEING DECRYPTED AND UNLOCKED BY ITS MANUFACTURER OR ITS OPERATING SYSTEM
PROVIDER.
3. THE SALE OR LEASE IN NEW YORK OF A SMARTPHONE MANUFACTURED ON OR
AFTER JANUARY FIRST, TWO THOUSAND SIXTEEN THAT IS NOT CAPABLE OF BEING
DECRYPTED AND UNLOCKED BY ITS MANUFACTURER OR ITS OPERATING SYSTEM
PROVIDER SHALL SUBJECT THE SELLER OR LESSOR TO A CIVIL PENALTY OF TWO
THOUSAND FIVE HUNDRED DOLLARS FOR EACH SMARTPHONE SOLD OR LEASED IF IT
IS DEMONSTRATED THAT THE SELLER OR LESSOR OF THE SMARTPHONE KNEW AT THE
TIME OF THE SALE OR LEASE THAT THE SMARTPHONE WAS NOT CAPABLE OF BEING
DECRYPTED AND UNLOCKED BY ITS MANUFACTURER OR ITS OPERATING SYSTEM
PROVIDER. NO SELLER OR LESSOR WHO PAYS THE CIVIL PENALTY MAY PASS ANY
PORTION OF THAT PENALTY ON TO ANY PURCHASER OF SMARTPHONES BY RAISING
THE SALES OR LEASE PRICE OF SMARTPHONES.
4. THE RETAIL SALE OR LEASE OF A SMARTPHONE MANUFACTURED ON OR AFTER
JANUARY FIRST, TWO THOUSAND SIXTEEN THAT IS NOT CAPABLE OF BEING
DECRYPTED AND UNLOCKED BY ITS MANUFACTURER OR ITS OPERATING SYSTEM
PROVIDER SHALL NOT RESULT IN LIABILITY TO THE SELLER OR LESSOR IF THE
INABILITY OF THE MANUFACTURER AND OPERATING SYSTEM PROVIDER TO DECRYPT
AND UNLOCK THE SMARTPHONE IS THE RESULT OF ACTIONS TAKEN BY ANY PERSON
OR ENTITY OTHER THAN THE MANUFACTURER, THE OPERATING SYSTEM PROVIDER,
THE SELLER, OR THE LESSOR SO LONG AS SUCH ACTIONS WERE UNAUTHORIZED BY
THE MANUFACTURER, THE OPERATING SYSTEM PROVIDER, THE SELLER, OR THE
LESSOR UNLESS AT THE TIME OF SALE OR LEASE THE SELLER OR LESSOR HAD
RECEIVED NOTIFICATION THAT THE MANUFACTURER AND OPERATING SYSTEM PROVID-
ER WERE UNABLE TO DECRYPT AND UNLOCK SMARTPHONES THAT HAD BEEN ACTED
UPON IN THE MANNER DESCRIBED ABOVE.
5. A CIVIL SUIT TO ENFORCE THIS SECTION MAY BE BROUGHT BY THE FOLLOW-
ING PARTIES AND NONE OTHERS: (A) THE ATTORNEY GENERAL, FOR ANY SALE OR
LEASE OF A SMARTPHONE IN NEW YORK, AND (B) THE DISTRICT ATTORNEY FOR ANY
SALE OR LEASE OF A SMARTPHONE IN THE COUNTY REPRESENTED BY THE DISTRICT
ATTORNEY, PROVIDED, HOWEVER THAT THE SELLER OR LESSOR MAY BE SUBJECT TO
NOT MORE THAN A SINGLE PENALTY FOR EACH SALE OR LEASE OF A SMARTPHONE.
S 2. This act shall take effect immediately.