The New York State Senate

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3306
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 2, 2023
                                ___________
 
 Introduced  by  M.  of A. SOLAGES, L. ROSENTHAL, EPSTEIN, HYNDMAN, OTIS,
   SIMON, JACKSON, SEAWRIGHT, HEVESI, WALKER, DICKENS,  HUNTER,  FORREST,
   MAMDANI,  TAYLOR,  AUBRY,  CARROLL  --  read  once and referred to the
   Committee on Codes
 
 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.
         695.60 SEVERABILITY.
 § 695.00 DEFINITIONS.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01981-01-3
 A. 3306                             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. "PERSON" MEANS A NATURAL PERSON OR A LEGAL  ENTITY,  INCLUDING  BUT
 NOT  LIMITED  TO  A  PROPRIETORSHIP,  PARTNERSHIP,  LIMITED PARTNERSHIP,
 CORPORATION, COMPANY, LIMITED LIABILITY COMPANY OR CORPORATION,  ASSOCI-
 ATION,  OR  OTHER  FIRM  OR SIMILAR BODY, OR ANY UNIT, DIVISION, AGENCY,
 DEPARTMENT, OR SIMILAR SUBDIVISION THEREOF.
   3. "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.
   4. "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.
   5.  "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.
   6.  "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.
 § 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 COURT ORDER, A REVERSE KEYWORD COURT ORDER, A VOLUNTARY REVERSE
 LOCATION REQUEST, OR A VOLUNTARY 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
 A. 3306                             3
 
 GOVERNMENT ENTITY WOULD BE BARRED FROM DIRECTLY SEEKING SUCH INFORMATION
 UNDER THIS ARTICLE.
   5. NOTWITHSTANDING ANY STATE OR LOCAL LAW, REGULATION, OR AGREEMENT TO
 THE CONTRARY, NO COURT OR GOVERNMENT ENTITY OF THE STATE OF NEW YORK, OR
 POLITICAL  SUBDIVISION  THEREOF,  SHALL  SUPPORT,  ASSIST,  OR ENFORCE A
 REVERSE LOCATION COURT ORDER OR REVERSE KEYWORD COURT  ORDER  ISSUED  BY
 THE  STATE  OF NEW YORK OR A POLITICAL SUBDIVISION THEREOF, OR ANY OTHER
 STATE OR A POLITICAL SUBDIVISION THEREOF, INCLUDING THE DOMESTICATION OF
 ANY SUCH COURT ORDER.
   6. NOTWITHSTANDING ANY STATE OR LOCAL LAW, REGULATION, OR AGREEMENT TO
 THE CONTRARY, NO PERSON OR ENTITY IN THE STATE OF NEW YORK, AS A  RESULT
 OF ANY LAW, REGULATION, OR AGREEMENT ADOPTED BY THE STATE OF NEW YORK OR
 ANY  POLITICAL  SUBDIVISION THEREOF, SHALL BE OBLIGATED TO COMPLY WITH A
 REVERSE LOCATION COURT ORDER OR A REVERSE KEYWORD COURT ORDER ISSUED  BY
 THE  STATE  OF  NEW YORK OR A POLITICAL SUBDIVISION THEREOF OR ANY OTHER
 STATE OR A POLITICAL SUBDIVISION THEREOF.
 § 695.30 REVERSE LOCATION AND REVERSE KEYWORD SEARCHES;  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 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)  WHETHER  THE  VIOLATION  DIRECTLY  OR INDIRECTLY TARGETED PERSONS
 ENGAGED IN THE EXERCISE OF ACTIVITIES PROTECTED BY THE  CONSTITUTION  OF
 THE  UNITED  STATES  OF  AMERICA OR THE CONSTITUTION OF THE STATE OF NEW
 YORK; AND
   (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.
 A. 3306                             4
 
   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.
 § 695.60 SEVERABILITY.
   THE PROVISIONS OF THIS ARTICLE ARE SEVERABLE. IF ANY PART OR PROVISION
 OF THIS ARTICLE, OR THE APPLICATION OF THIS ARTICLE TO ANY PERSON, ENTI-
 TY,  OR  CIRCUMSTANCE,  IS  HELD INVALID, THE REMAINDER OF THIS ARTICLE,
 INCLUDING THE APPLICATION OF SUCH PART OR PROVISION  TO  OTHER  PERSONS,
 ENTITIES,  OR  CIRCUMSTANCES,  SHALL NOT BE AFFECTED BY SUCH HOLDING AND
 SHALL CONTINUE TO HAVE FORCE AND EFFECT.
   § 3. This act shall take effect immediately.