The New York State Senate

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

                                 8093--A

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                              June 8, 2015
                               ___________

Introduced  by  M. of A. TITONE, MOSLEY -- read once and referred to the
  Committee on Consumer Affairs and Protection  --  recommitted  to  the
  Committee on Consumer Affairs and Protection in accordance with Assem-
  bly  Rule  3,  sec.  2  -- committee discharged, bill amended, ordered
  reprinted as amended and recommitted to said committee

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 SHALL 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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10855-02-6

A. 8093--A                          2

  (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.
  2.  ANY SMARTPHONE THAT IS MANUFACTURED ON OR AFTER JANUARY FIRST, TWO
THOUSAND SEVENTEEN, 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 SEVENTEEN 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  SEVENTEEN  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.