NY State Senate Bill 2021-S9247

Senate Bill S9247

2021-2022 Legislative Session

Prohibits the creation of fake electronic communication service accounts and prohibits the collection and use of account information by law enforcement and other governmental entities

download bill text pdf

Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 12, 2022	referred to codes

2021-S9247 (ACTIVE) - Details

See Assembly Version of this Bill:: A10447
Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Add Art 702 §§702.00 - 702.70, CP L
Versions Introduced in 2023-2024 Legislative Session:: S1764, A4638

2021-S9247 (ACTIVE) - Summary

Prohibits police and other governmental entities from creating fake electronic communication service accounts, or from collecting or using an individual's account information; establishes a private right of action for a violation of such provisions.

2021-S9247 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S9247

SPONSOR: CLEARE
 
TITLE OF BILL:

An act to amend the criminal procedure law, in relation to prohibiting
the creation of fake electronic communication service accounts and to
prohibiting the collection and use of individuals' account information
by law enforcement officers and other government entities

 
PURPOSE:

To prohibit police deception to gain access to social media accounts.
The measures would disallow police from tricking New Yorkers to hand
over private communications, whether through use of fake police social
media accounts or by coercing New Yorkers to provide login credentials
to social media accounts.

 
SUMMARY OF PROVISIONS:

Section 1 sets the short title.

Section 2 amends the criminal procedure law to create a new article 702,
prohibiting law enforcement officers' creation and/or use of fake social
media accounts, prevents introduction of evidence obtained using such
accounts, and provides a private right of action.

Section 3 sets the effective date.

 
JUSTIFICATION:

Given the SCOTUS draft decision on Roe v. Wade leaked in May 2022, the
need to protect our private information feels more immediate than ever.
Under current law, police can create fake accounts - impersonating
friends, family, and neighbors - and even mislead or coerce individuals
into handing over their account credentials. For pregnant people and
those seeking abortion care, this is of particular threat: fake social
media accounts provide law enforcement with a uniquely powerful tool for
tracking them.

Through these deceptive methods, law enforcement can impersonate friends
and family of those seeking abortion care as a tool to document private
posts about reproductive health. Even more disturbingly, law enforcement
officers can set up fake accounts impersonating abortion clinics and
other reproductive health providers, tricking users into revealing their
interest in abortion care. Even if abortion care remains protected in
New York State, such tools allow New York-based law enforcement officers
to obtain information on large numbers of abortion seekers that can then
be freely provided to anti-choice jurisdictions (and the Federal Govern-
ment) as part of interagency information sharing agreements.

The scope of these fake accounts leads to surveillance on more than just
individuals seeking health care - it threatens our rights to speak,
worship, associate, and assemble freely.

Internet attribution management technology, such as tools deployed by
the New York Police Department (NYPD), potentially allow a single offi-
cer to operate dozens of accounts, systematically - and discriminatorily
- targeting New Yorkers with invitations to share real-time records of
their lives with the police. If such tactics are combined with police
databases and artificial intelligence software, it further magnifies the
threat, allowing police to surveil nearly any New Yorker at any time.

Once New Yorkers purportedly consent to this tracking, police can freely
take information that otherwise would have been completely inaccessible
without a court order. This tactic has been used by hackers, cyber crim-
inals, foreign governments, and other bad actors to infiltrate Ameri-
cans' digital lives, and it should not be used by our own government as
well. Just as disturbingly, individual officers can abuse the tactic,
including for non-policing purposes.

Legislative History:

New Proposal.

Costs To State & Local Governments:

None Anticipated.

Effective Date:

Immediate.

2021-S9247 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9247
 
                             I N  S E N A T E
 
                               May 12, 2022
                                ___________
 
 Introduced  by  Sen.  CLEARE -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the criminal procedure law, in relation  to  prohibiting
   the  creation of fake electronic communication service accounts and to
   prohibiting the collection and use of individuals' account information
   by law enforcement officers and other government entities

   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 "stop online police fake accounts and keep everyone safe act" or the
 "stop fakes act".
   § 2. The criminal procedure law is amended by adding a new article 702
 to read as follows:
                                ARTICLE 702
   DECEPTIVE LAW ENFORCEMENT ACCESS TO ELECTRONIC COMMUNICATION SERVICE
                            ACCOUNTS PROHIBITED
 SECTION 702.00 DEFINITIONS.
         702.10 LAW ENFORCEMENT CREATION OF FAKE ACCOUNTS PROHIBITED.
         702.20 LAW ENFORCEMENT USE OF FAKE ACCOUNTS PROHIBITED.
         702.30 THIRD PARTY USE OF FAKE ACCOUNTS.
         702.40 LAW ENFORCEMENT COLLECTION OF ACCOUNT INFORMATION PROHIB-
                 ITED.
         702.50 LAW ENFORCEMENT USE OF ACCOUNT INFORMATION PROHIBITED.
         702.60 FAKE ACCOUNTS AND COLLECTION OF CREDENTIALS;  SUPPRESSION
                 OF EVIDENCE.
         702.70  FAKE  ACCOUNTS  AND  COLLECTION  OF ACCOUNT INFORMATION;
                 PRIVATE RIGHT OF ACTION.
 § 702.00 DEFINITIONS.
   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 SUCH DEPARTMENT OR AGENCY  OF  THE  STATE  OR  POLITICAL
 SUBDIVISION THEREOF.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD14780-03-2
 S. 9247                             2
 
   2.  "LAW ENFORCEMENT OFFICER" MEANS ANY POLICE OFFICER, PEACE OFFICER,
 SCHOOL RESOURCE OFFICER OR PROSECUTOR.
   3.  "ELECTRONIC  COMMUNICATION"  MEANS  ANY COMMUNICATION SENT BETWEEN
 ACCOUNT HOLDERS USING AN ELECTRONIC COMMUNICATION SERVICE.
   4. "ELECTRONIC COMMUNICATION INFORMATION" MEANS INFORMATION RELATED TO
 AN ELECTRONIC COMMUNICATION  OR THE USE OF AN  ELECTRONIC  COMMUNICATION
 SERVICE  INCLUDING, BUT NOT LIMITED TO THE CONTENTS, SENDER, RECIPIENTS,
 OR FORMAT OF AN ELECTRONIC COMMUNICATION;  THE  PRECISE  OR  APPROXIMATE
 LOCATION  OF  THE SENDER OR RECIPIENT OF AN ELECTRONIC  COMMUNICATION AT
 ANY TIME DURING SUCH ELECTRONIC COMMUNICATION; THE  TIME  OR  DATE  SUCH
 ELECTRONIC  COMMUNICATION WAS CREATED, SENT, OR RECEIVED AND INFORMATION
 PERTAINING TO AN INDIVIDUAL OR DEVICE INVOLVED IN SUCH ELECTRONIC COMMU-
 NICATION INCLUDING BUT NOT LIMITED  TO  AN  INTERNET  PROTOCOL  ADDRESS.
 "ELECTRONIC  COMMUNICATION INFORMATION" SHALL NOT INCLUDE INFORMATION IN
 THE PUBLIC DOMAIN.
   5. "ELECTRONIC COMMUNICATION SERVICE" MEANS A  SERVICE  THAT  PROVIDES
 SUBSCRIBERS  TO  OR USERS OF SUCH SERVICE THE ABILITY TO SEND OR RECEIVE
 AN ELECTRONIC COMMUNICATION, INCLUDING A SERVICE THAT ACTS AS AN  INTER-
 MEDIARY IN THE TRANSMISSION OF ELECTRONIC COMMUNICATIONS, OR THAT STORES
 ELECTRONIC COMMUNICATION INFORMATION.
   6.  "ACCOUNT"  MEANS AN INDIVIDUAL PROFILE OR ACCOUNT CREATED USING AN
 ELECTRONIC COMMUNICATION SERVICE.
   7. "ACCOUNT INFORMATION" MEANS INFORMATION USED TO ACCESS OR  IDENTIFY
 AN  INDIVIDUAL'S  ACCOUNT  INCLUDING, BUT NOT LIMITED TO, ACCESS CREDEN-
 TIALS, USERNAMES, PASSWORDS, AND/OR BIOMETRIC IDENTIFIERS.
   8. "FAKE ACCOUNT" MEANS ANY ACCOUNT CREATED WITH OR  USED  WITH  FALSE
 IDENTIFYING  INFORMATION,  INCLUDING,  BUT NOT LIMITED TO, NAME, OCCUPA-
 TION, OR PICTURES.
   9. "COLLECT" OR "COLLECTION" MEANS ANY METHOD USED TO OBTAIN AN  INDI-
 VIDUAL'S  ACCOUNT INFORMATION, INCLUDING BUT NOT LIMITED TO, REQUESTING,
 DEMANDING, AND/OR COERCING ANY INDIVIDUAL TO PROVIDE SUCH ACCOUNT INFOR-
 MATION FROM INDIVIDUALS IN PERSON, ELECTRONICALLY, IN WRITING, OR OTHER-
 WISE.
   10. "ACCOUNT HOLDER" MEANS THE CREATOR AND OPERATOR OF AN ACCOUNT.
 § 702.10 LAW ENFORCEMENT CREATION OF FAKE ACCOUNTS PROHIBITED.
   NO LAW ENFORCEMENT OFFICER SHALL CREATE A FAKE ACCOUNT WITH  AN  ELEC-
 TRONIC COMMUNICATION SERVICE.
 § 702.20 LAW ENFORCEMENT USE OF FAKE ACCOUNTS PROHIBITED.
   NO  LAW ENFORCEMENT OFFICER SHALL ACCESS OR USE A FAKE ACCOUNT FOR ANY
 PURPOSE, INCLUDING, BUT NOT LIMITED TO,  COMMUNICATION  WITH  INDIVIDUAL
 ACCOUNTS,  PUBLIC COMMUNICATIONS, UPDATES TO ACCOUNT INFORMATION, AND/OR
 REQUESTS TO ACCESS INFORMATION OR CONTENT FROM THE USER OF ANY ELECTRON-
 IC COMMUNICATION SERVICE.
 § 702.30 THIRD PARTY USE OF FAKE ACCOUNTS.
   NO GOVERNMENT ENTITY OR GOVERNMENT OFFICIAL SHALL SEEK THE  ASSISTANCE
 OF  ANY  NON-GOVERNMENT ENTITY, ANY AGENCY OF THE FEDERAL GOVERNMENT, OR
 ANY AGENCY OF THE GOVERNMENT OF ANOTHER STATE OR SUBDIVISION THEREOF  IN
 OBTAINING  INFORMATION  OR  DATA USING A FAKE ACCOUNT IF SUCH GOVERNMENT
 ENTITY OR GOVERNMENT OFFICIAL WOULD BE BARRED FROM DIRECTLY SEEKING SUCH
 INFORMATION UNDER THIS ARTICLE.
 § 702.40 LAW ENFORCEMENT COLLECTION OF ACCOUNT INFORMATION PROHIBITED.
   NO LAW ENFORCEMENT  OFFICER  OR  GOVERNMENT  OFFICIAL  SHALL  REQUEST,
 DEMAND,  AND/OR  COERCE ANY ACCOUNT HOLDER TO PROVIDE SUCH ACCOUNT HOLD-
 ER'S ACCOUNT INFORMATION.
 § 702.50 LAW ENFORCEMENT USE OF ACCOUNT INFORMATION PROHIBITED.
 S. 9247                             3
 
   NO LAW ENFORCEMENT  OFFICER  OR  GOVERNMENT  OFFICIAL  SHALL  USE  ANY
 ACCOUNT  INFORMATION  OBTAINED  IN  VIOLATION  OF SECTION 702.40 OF THIS
 ARTICLE, INCLUDING, BUT NOT LIMITED TO, BY LOGGING INTO AN  INDIVIDUAL'S
 ACCOUNT.  NOTHING IN THIS SECTION SHALL PROHIBIT A LAW ENFORCEMENT OFFI-
 CER  OR  GOVERNMENT  OFFICIAL FROM CREATING AND MAINTAINING ACCOUNTS FOR
 PERSONAL USE, PROVIDED THAT SUCH ACCOUNTS ARE NOT USED IN THE  SCOPE  OF
 ANY LAW ENFORCEMENT OR INVESTIGATIVE DUTIES.
 §  702.60  FAKE  ACCOUNTS  AND COLLECTION OF CREDENTIALS; SUPPRESSION OF
            EVIDENCE.
   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 FAKE ACCOUNT;
   (B)  WAS  OBTAINED  AS  A  RESULT OF OTHER RECORDS OBTAINED VIA A FAKE
 ACCOUNT; OR
   (C) CONSISTS OF A RECORD,  OR  WAS  OBTAINED  AS  A  RESULT  OF  OTHER
 RECORDS,  ACQUIRED  VIA ACCOUNT ACCESS CREDENTIALS OBTAINED IN VIOLATION
 OF THIS ARTICLE.
   2. 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.
 §  702.70  FAKE  ACCOUNTS AND COLLECTION OF ACCOUNT INFORMATION; PRIVATE
            RIGHT OF ACTION.
   1. ANY INDIVIDUAL WHOSE ACCOUNT  INFORMATION,  RECORDS,  EVIDENCE,  OR
 OTHER  INFORMATION  WERE  EITHER  ACCESSED  BY  ANY GOVERNMENT ENTITY OR
 GOVERNMENT OFFICIAL OR BY A THIRD PARTY AT THE REQUEST OF  A  GOVERNMENT
 ENTITY OR GOVERNMENT OFFICIAL IN VIOLATION OF THIS ARTICLE MAY INSTITUTE
 A CIVIL ACTION AGAINST SUCH GOVERNMENT ENTITY OR GOVERNMENT OFFICIAL FOR
 ANY OR ALL OF THE FOLLOWING:
   (A) TEN THOUSAND DOLLARS PER VIOLATION OR ACTUAL DAMAGES, WHICHEVER IS
 GREATER;
   (B) PUNITIVE DAMAGES;
   (C) INJUNCTIVE OR DECLARATORY RELIEF; AND/OR
   (D) ANY OTHER RELIEF THE COURT DEEMS PROPER.
   2. IN ASSESSING THE AMOUNT OF PUNITIVE DAMAGES UNDER THIS SECTION, THE
 COURT SHALL CONSIDER:
   (A)  THE  NUMBER  OF PEOPLE WHOSE ELECTRONIC COMMUNICATION INFORMATION
 WAS DISCLOSED;
   (B) THE  TARGETING  OF  ACCOUNTS  WITH  HEIGHTENED  PRIVACY  CONCERNS,
 INCLUDING,  BUT  NOT  LIMITED TO, HOUSES OF WORSHIP, POLITICAL ORGANIZA-
 TIONS, AND MEDICAL FACILITIES, AND INDIVIDUALS ASSOCIATED THEREWITH; AND
   (C) THE PERSISTENCE OF VIOLATIONS BY THE PARTICULAR GOVERNMENT  ENTITY
 OR GOVERNMENT OFFICIAL.
   3.  IN  ANY  ACTION  BROUGHT UNDER THIS SECTION, THE COURT SHALL AWARD
 REASONABLE ATTORNEYS' FEES, EXPENSES, AND COSTS TO A  PREVAILING  PLAIN-
 TIFF.
   § 3. This act shall take effect immediately.

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