The New York State Senate

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   84--A
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by  M. of A. QUART, DE LA ROSA, L. ROSENTHAL, EPSTEIN, HYND-
   MAN, BARRON, ABINANTI, OTIS, GOTTFRIED, SIMON, JACKSON,  SEAWRIGHT  --
   read  once  and  referred  to  the  Committee  on  Codes  -- committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to said committee
 
 AN ACT to amend the criminal procedure law, in relation  to  prohibiting
   the search, with or without a warrant, of geolocation and keyword data
   of  a  group of people who are under no individual suspicion of having
   committed a crime, but rather are defined by having been  at  a  given
   location  at a given time or searched particular words, phrases, char-
   acter strings, or websites
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Short  title. This act shall be known and may be cited as
 the "reverse location and reverse keyword search prohibition act".
   § 2. The criminal procedure law is amended by adding a new article 695
 to read as follows:
                                ARTICLE 695
               REVERSE LOCATION AND REVERSE KEYWORD SEARCHES
 SECTION 695.00 DEFINITIONS.
         695.10 ISSUANCE OF REVERSE LOCATION  COURT  ORDERS  AND  REVERSE
                  KEYWORD COURT ORDERS.
         695.20 EXECUTION OF REVERSE LOCATION AND REVERSE KEYWORD SEARCH-
                  ES.
         695.30 REVERSE    LOCATION   AND   REVERSE   KEYWORD   SEARCHES;
                  SUPPRESSION OF EVIDENCE.
         695.40 REVERSE LOCATION AND REVERSE  KEYWORD  SEARCHES;  PRIVATE
                  RIGHT OF ACTION.
         695.50 PHYSICAL SEARCHES EXCLUDED.
 § 695.00 DEFINITIONS.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD01721-05-1

 A. 84--A                            2
 
   AS  USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING
 MEANINGS:
   1.  "GOVERNMENT  ENTITY"  SHALL  MEAN  ANY DEPARTMENT OR AGENCY OF THE
 STATE OR ANY POLITICAL SUBDIVISION THEREOF, OR ANY INDIVIDUAL ACTING FOR
 OR ON BEHALF OF THE STATE OR A POLITICAL SUBDIVISION THEREOF.
   2. "REVERSE KEYWORD COURT ORDER" MEANS ANY COURT  ORDER,  INCLUDING  A
 SEARCH  WARRANT,  COMPELLING  THE  DISCLOSURE  OF RECORDS OR INFORMATION
 IDENTIFYING ANY UNNAMED PERSONS, BY NAME OR OTHER UNIQUE IDENTIFIER, WHO
 ELECTRONICALLY  SEARCHED  FOR  PARTICULAR  WORDS,   PHRASES,   CHARACTER
 STRINGS, OR WEBSITES, OR WHO VISITED A PARTICULAR WEBSITE THROUGH A LINK
 GENERATED  BY  SUCH  A SEARCH, REGARDLESS OF WHETHER OR NOT THE ORDER IS
 LIMITED TO A SPECIFIC GEOGRAPHIC AREA OR TIME FRAME.
   3. "REVERSE LOCATION COURT ORDER" MEANS ANY COURT ORDER,  INCLUDING  A
 SEARCH  WARRANT,  COMPELLING  THE  DISCLOSURE  OF RECORDS OR INFORMATION
 PERTAINING TO ELECTRONIC DEVICES OR THEIR USERS OR OWNERS,  WHOSE  SCOPE
 EXTENDS  TO  AN  UNKNOWN NUMBER OF ELECTRONIC DEVICES PRESENT IN A GIVEN
 GEOGRAPHIC AREA AT A GIVEN  TIME  AS  MEASURED  VIA  GLOBAL  POSITIONING
 SYSTEM COORDINATES, CELL TOWER CONNECTIVITY, WI-FI DATA AND/OR ANY OTHER
 FORM OF LOCATION DETECTION.
   4.  "VOLUNTARY  REVERSE  KEYWORD  REQUEST"  MEANS  ANY  REQUEST IN THE
 ABSENCE OF A COURT ORDER, BY ANY GOVERNMENT ENTITY FOR THE PROVISION  OF
 RECORDS OR INFORMATION IDENTIFYING ANY UNNAMED PERSONS, BY NAME OR OTHER
 UNIQUE  IDENTIFIER,  WHO  ELECTRONICALLY  SEARCHED FOR PARTICULAR WORDS,
 PHRASES, CHARACTER STRINGS, OR WEBSITES, OR  WHO  VISITED  A  PARTICULAR
 WEBSITE THROUGH A LINK GENERATED BY SUCH A SEARCH, REGARDLESS OF WHETHER
 OR NOT THE ORDER IS LIMITED TO A SPECIFIC GEOGRAPHIC AREA OR TIME FRAME.
   5.  "VOLUNTARY  REVERSE  LOCATION  REQUEST"  MEANS  ANY REQUEST IN THE
 ABSENCE OF A COURT ORDER BY ANY GOVERNMENT ENTITY FOR RECORDS OR  INFOR-
 MATION  PERTAINING TO ELECTRONIC DEVICES OR THEIR USERS OR OWNERS, WHOSE
 SCOPE EXTENDS TO AN UNKNOWN NUMBER OF ELECTRONIC DEVICES  PRESENT  IN  A
 GIVEN  GEOGRAPHIC  AREA AT A GIVEN TIME, WHETHER SUCH DEVICE LOCATION IS
 MEASURED VIA GLOBAL POSITIONING SYSTEM COORDINATES, CELL  TOWER  CONNEC-
 TIVITY, WI-FI DATA AND/OR ANY OTHER FORM OF LOCATION DETECTION.
   6.  "LAW ENFORCEMENT OFFICER" MEANS ANY POLICE OFFICER, PEACE OFFICER,
 OR PROSECUTOR.
 § 695.10 ISSUANCE OF REVERSE LOCATION COURT ORDERS AND  REVERSE  KEYWORD
            COURT ORDERS.
   NO  COURT  SHALL  ISSUE  A  REVERSE  LOCATION COURT ORDER OR A REVERSE
 KEYWORD COURT ORDER.
 § 695.20 EXECUTION OF REVERSE LOCATION AND REVERSE KEYWORD SEARCHES.
   1. NO GOVERNMENT ENTITY SHALL SEEK, FROM ANY COURT, A REVERSE LOCATION
 COURT ORDER OR A REVERSE KEYWORD COURT ORDER.
   2. NO GOVERNMENT  ENTITY  SHALL  MAKE  A  VOLUNTARY  REVERSE  LOCATION
 REQUEST OR A VOLUNTARY AND REVERSE KEYWORD REQUEST.
   3.  NO GOVERNMENT ENTITY SHALL SEEK, SECURE, OBTAIN, BORROW, PURCHASE,
 USE, OR REVIEW ANY  INFORMATION  OR  DATA  OBTAINED  THROUGH  A  REVERSE
 LOCATION REQUEST OR A REVERSE KEYWORD REQUEST.
   4.  NO  GOVERNMENT ENTITY SHALL SEEK THE ASSISTANCE OF ANY NON-GOVERN-
 MENTAL ENTITY, ANY AGENCY OF THE FEDERAL GOVERNMENT, OR  ANY  AGENCY  OF
 THE  GOVERNMENT  OF  ANOTHER  STATE  OR SUBDIVISION THEREOF IN OBTAINING
 INFORMATION OR DATA FROM A REVERSE LOCATION COURT ORDER, REVERSE KEYWORD
 COURT ORDER, REVERSE LOCATION REQUEST, OR REVERSE KEYWORD REQUEST IF THE
 GOVERNMENT ENTITY WOULD BE BARRED FROM DIRECTLY SEEKING SUCH INFORMATION
 UNDER THIS ARTICLE.
 § 695.30 REVERSE LOCATION AND REVERSE KEYWORD SEARCHES;  SUPPRESSION  OF
            EVIDENCE.

 A. 84--A                            3
 
   1.  UPON MOTION FROM A DEFENDANT, A COURT SHALL ORDER THAT EVIDENCE BE
 SUPPRESSED OR EXCLUDED IF THE COURT FINDS THAT SUCH EVIDENCE:
   (A)  CONSISTS OF A RECORD ACQUIRED VIA A REVERSE LOCATION COURT ORDER,
 REVERSE KEYWORD COURT ORDER,  VOLUNTARY  REVERSE  LOCATION  REQUEST,  OR
 VOLUNTARY REVERSE KEYWORD REQUEST; OR
   (B)  WAS  OBTAINED  AS  A  RESULT  OF  OTHER EVIDENCE OBTAINED UNDER A
 REVERSE LOCATION COURT ORDER, REVERSE  KEYWORD  COURT  ORDER,  VOLUNTARY
 REVERSE LOCATION REQUEST, OR VOLUNTARY REVERSE KEYWORD REQUEST.
   2.  THIS  SECTION SHALL APPLY REGARDLESS OF THE COURT WHICH ISSUED THE
 ORDER AND REGARDLESS OF WHETHER THE ISSUANCE OF THE ORDER WAS  PERMISSI-
 BLE UNDER THE PROCEDURES OF THAT COURT.
   3.  THIS SECTION SHALL APPLY REGARDLESS OF ANY CLAIM THAT THE INFORMA-
 TION OR EVIDENCE IS ATTENUATED FROM AN UNLAWFUL ORDER OR REQUEST,  WOULD
 INEVITABLY  HAVE  BEEN DISCOVERED, OR WAS SIMULTANEOUSLY OR SUBSEQUENTLY
 OBTAINED OR REOBTAINED THROUGH OTHER MEANS.
 § 695.40 REVERSE LOCATION AND REVERSE KEYWORD SEARCHES; PRIVATE RIGHT OF
            ACTION.
   1. ANY INDIVIDUAL WHOSE RECORDS WERE OBTAINED BY ANY GOVERNMENT ENTITY
 IN VIOLATION OF SECTION 695.20 OF THIS ARTICLE  MAY  INSTITUTE  A  CIVIL
 ACTION AGAINST SUCH GOVERNMENT ENTITY FOR ANY OR ALL OF THE FOLLOWING:
   (A) ONE THOUSAND DOLLARS PER VIOLATION OR ACTUAL DAMAGES, WHICHEVER IS
 GREATER.
   (B) PUNITIVE DAMAGES.
   (C) INJUNCTIVE OR DECLARATORY RELIEF.
   (D) ANY OTHER RELIEF THE COURT DEEMS PROPER.
   2.  IN  ASSESSING  THE  AMOUNT  OF  PUNITIVE  DAMAGES, THE COURT SHALL
 CONSIDER:
   (A) THE NUMBER OF PEOPLE WHOSE INFORMATION WAS DISCLOSED.
   (B) THE PROXIMITY OF THE SEARCH TO LOCATIONS WITH  HEIGHTENED  PRIVACY
 CONCERNS,  INCLUDING,  BUT  NOT LIMITED TO, HOUSES OF WORSHIP, POLITICAL
 PROTESTS, AND MEDICAL FACILITIES.
   (C) THE PERSISTENCE OF VIOLATIONS BY THE PARTICULAR GOVERNMENT ENTITY.
   3. IN ANY ACTION BROUGHT UNDER THIS SECTION,  THE  COURT  SHALL  AWARD
 REASONABLE  ATTORNEYS'  FEES,  EXPENSES AND COSTS TO A PREVAILING PLAIN-
 TIFF.
 § 695.50 PHYSICAL SEARCHES EXCLUDED.
   THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE SEARCH OF  ANY  ELEC-
 TRONIC  DEVICE  LAWFULLY  SEIZED  AND/OR  SEARCHED  PURSUANT TO A SEARCH
 WARRANT ISSUED UNDER ARTICLE SIX HUNDRED NINETY OF THIS TITLE.
   § 3. This act shall take effect immediately.