Assembly Bill A7024

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7024
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              March 29, 2017
                                ___________
 
 Introduced by M. of A. TITONE, MOSLEY, SEAWRIGHT, LUPARDO -- Multi-Spon-
   sored by -- M.  of A. LOPEZ -- 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:
   § 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.
   (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.
              

                                                            LBD09153-01-7

 A. 7024                             2
 
   2. ANY SMARTPHONE THAT IS MANUFACTURED ON OR AFTER JANUARY FIRST,  TWO
 THOUSAND  EIGHTEEN,  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 EIGHTEEN 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  EIGHTEEN  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.
   § 2. This act shall take effect immediately.