Senate Bill S4162

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4162
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             February 3, 2023
                                ___________
 
 Introduced  by  Sens. RAMOS, BRISPORT, COMRIE, GOUNARDES, HOYLMAN-SIGAL,
   JACKSON, KAVANAGH, KRUEGER, LIU, MAY, MYRIE, PARKER,  RIVERA,  SALAZAR
   -- read twice and ordered printed, and when printed to be committed to
   the Committee on Codes
 
 AN  ACT  to  amend the civil rights law, in relation to imposing limita-
   tions on the use of drones for law enforcement purposes
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  This  act shall be known and may be cited as the "protect
 our privacy (POP) act".
   § 2. The civil rights law is amended by adding a new section  52-e  to
 read as follows:
   § 52-E. LIMITATIONS ON THE USE OF DRONES; LAW ENFORCEMENT PURPOSES. 1.
 THE  USE  OF DRONES BY A LAW ENFORCEMENT AGENCY, OR EMPLOYEE THEREOF, OR
 FOR LAW ENFORCEMENT PURPOSES, IS  PROHIBITED,  AND  NO  WARRANT  MAY  BE
 SOUGHT  OR  ISSUED AUTHORIZING SUCH USE OF DRONES. IT IS ALSO PROHIBITED
 FOR LAW ENFORCEMENT TO ENTER INTO AN AGREEMENT WITH A PRIVATE ENTITY  OR
 INDIVIDUAL,  WHETHER  PAID  OR  OTHERWISE,  TO  OBTAIN  INFORMATION FROM
 DRONES.
   2. NOTWITHSTANDING SUBDIVISION ONE OF THIS  SECTION,  LAW  ENFORCEMENT
 AGENCIES MAY USE DRONES FOR THE FOLLOWING PURPOSES:
   A. SEARCH AND RESCUE.
   B. EXAMINING CONDITIONS OF DANGEROUS AREAS AFTER NATURAL DISASTERS.
   3.  NOTWITHSTANDING SUBDIVISION TWO OF THIS SECTION, A LAW ENFORCEMENT
 AGENCY OR EMPLOYEE THEREOF  MAY  NOT  USE  A  DRONE  FOR  DOCUMENTATION,
 RECORDING,  INVESTIGATION,  OR COLLECTION OF DATA AT CONCERTS, PROTESTS,
 DEMONSTRATIONS, OR OTHER ACTIONS PROTECTED BY THE FIRST AMENDMENT TO THE
 UNITED STATES CONSTITUTION OR SECTIONS EIGHT AND NINE OF ARTICLE ONE  OF
 THE  NEW  YORK  STATE  CONSTITUTION, NOR MAY A LAW ENFORCEMENT AGENCY OR
 EMPLOYEE THEREOF POSSESS OR USE AN ARMED DRONE.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04385-02-3
 S. 4162                             2
              

 
   4. ANY DATA OBTAINED FROM DRONES PURSUANT TO SUBDIVISION TWO  OF  THIS
 SECTION  MAY  NOT BE USED FOR ANY LAW ENFORCEMENT PURPOSES. FURTHERMORE,
 ANY PERSONALLY IDENTIFYING INFORMATION COLLECTED FROM  SUCH  DRONES  MAY
 NOT BE SHARED WITH ANY FEDERAL, STATE, LOCAL, OR PRIVATE ENTITY OR INDI-
 VIDUAL  UNLESS SUCH ENTITY OR INDIVIDUAL AGREES TO KEEP SUCH INFORMATION
 CONFIDENTIAL. ANY INDIVIDUAL WHOSE PERSONALLY IDENTIFYING DATA IS SHARED
 IN VIOLATION OF THIS SUBDIVISION OR IN VIOLATION  OF  A  CONFIDENTIALITY
 AGREEMENT  PURSUANT  TO  THIS  SUBDIVISION SHALL HAVE A PRIVATE RIGHT OF
 ACTION AGAINST THE ENTITY OR INDIVIDUAL WHO SHARES SUCH DATA.
   5. THIS SECTION SHALL APPLY RETROACTIVELY WITH RESPECT TO LAW ENFORCE-
 MENT DATA COLLECTED FROM USING DRONES EQUIPPED WITH  FACIAL  RECOGNITION
 SOFTWARE  OR  USING  FACIAL  RECOGNITION  ON VIDEO OR IMAGES OBTAINED OR
 CREATED BY A DRONE, INCLUDING VIDEOS OR IMAGES OBTAINED  OR  CREATED  BY
 DRONES  OWNED, CONTROLLED, OR MAINTAINED BY A PRIVATE COMPANY, A PRIVATE
 INDIVIDUAL, OR OTHER GOVERNMENT AGENCY, AND ANY SUCH  DATA  MAY  NOT  BE
 USED IN ANY ONGOING INVESTIGATIONS OR PROSECUTIONS AND SHALL BE PROMPTLY
 DELETED.
   6.  DATA  OR  INFORMATION OBTAINED BY DRONES AND WITHIN THE CONTROL OF
 ANY GOVERNMENT AGENCY OR IN THE POSSESSION OF A PRIVATE COMPANY OR INDI-
 VIDUAL ON BEHALF OF ANY GOVERNMENT AGENCY SHALL BE  SUBJECT  TO  RELEASE
 UNDER THE FREEDOM OF INFORMATION LAW, PROVIDED THAT ALL PERSONAL IDENTI-
 FYING  INFORMATION,  EXCEPT FOR THAT OF LAW ENFORCEMENT PERSONNEL ACTING
 WITHIN THEIR OFFICIAL RESPONSIBILITIES OR PERFORMING AN  OFFICIAL  FUNC-
 TION, SHALL BE REDACTED PRIOR TO SUCH RELEASE.
   7.  ALL EXISTING DATA OR INFORMATION OBTAINED BY THE USE OF DRONES FOR
 LAW ENFORCEMENT PURPOSES THAT ARE NOT PART OF AN ONGOING CRIMINAL INVES-
 TIGATION OR PROCEEDING SHALL BE DESTROYED IN ONE YEAR OR LESS, ABSENT  A
 SUBPOENA  OR  COURT ORDER. EXISTING DATA OR INFORMATION NOT DESTROYED IN
 ONE YEAR OR LESS PURSUANT TO A SUBPOENA OR COURT ORDER AND THAT IS WITH-
 IN THE CONTROL OF ANY GOVERNMENT  AGENCY  OR  IN  THE  POSSESSION  OF  A
 PRIVATE  COMPANY  OR INDIVIDUAL ON BEHALF OF ANY GOVERNMENT AGENCY SHALL
 BE DESTROYED ONCE THE PROCEEDINGS OR INVESTIGATIONS THAT THE SUBPOENA OR
 COURT ORDER RELATED TO HAVE ENDED.
   8. A. SUPPRESSION. I. UPON MOTION FROM  A  DEFENDANT,  A  COURT  SHALL
 ORDER  THAT  EVIDENCE  BE SUPPRESSED OR EXCLUDED IF THE COURT FINDS THAT
 SUCH EVIDENCE WAS OBTAINED IN VIOLATION OF THIS SECTION.
   II. THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE  COURT  WHICH  ISSUED
 THE  ORDER  AND  REGARDLESS  OF  WHETHER  THE  ISSUANCE OF THE ORDER WAS
 PERMISSIBLE UNDER THE PROCEDURES OF THAT COURT.
   III. THIS PARAGRAPH SHALL APPLY  REGARDLESS  OF  ANY  CLAIM  THAT  THE
 INFORMATION OR EVIDENCE IS ATTENUATED FROM AN UNLAWFUL ORDER OR REQUEST,
 WOULD  INEVITABLY  HAVE BEEN DISCOVERED, OR WAS SIMULTANEOUSLY OR SUBSE-
 QUENTLY OBTAINED OR REOBTAINED THROUGH OTHER MEANS.
   B. PRIVATE RIGHT OF ACTION.  I.  ANY  INDIVIDUAL  WHOSE  RECORDS  WERE
 OBTAINED  BY  ANY  GOVERNMENT  ENTITY  IN  VIOLATION OF THIS SECTION MAY
 INSTITUTE A CIVIL ACTION AGAINST SUCH GOVERNMENT ENTITY FOR ANY  OR  ALL
 OF THE FOLLOWING:
   (1) ONE THOUSAND DOLLARS PER VIOLATION OR ACTUAL DAMAGES, WHICHEVER IS
 GREATER;
   (2) PUNITIVE DAMAGES;
   (3) INJUNCTIVE OR DECLARATORY RELIEF;
   (4) ANY OTHER RELIEF THE COURT DEEMS PROPER.
   II.  IN  ASSESSING  THE  AMOUNT  OF  PUNITIVE DAMAGES, THE COURT SHALL
 CONSIDER:
   (1) THE NUMBER OF PEOPLE WHOSE RIGHTS WERE VIOLATED;
 S. 4162                             3
 
   (2) WHETHER THE VIOLATION  DIRECTLY  OR  INDIRECTLY  TARGETED  PERSONS
 ENGAGED  IN  THE  EXERCISE  OF ACTIVITIES PROTECTED BY THE UNITED STATES
 CONSTITUTION OR THE NEW YORK STATE CONSTITUTION; AND
   (3) THE PERSISTENCE OF VIOLATIONS BY THE PARTICULAR GOVERNMENT ENTITY.
   III.  IN  ANY ACTION BROUGHT UNDER THIS SECTION, THE COURT SHALL AWARD
 REASONABLE ATTORNEYS' FEES, EXPENSES AND COSTS TO  A  PREVAILING  PLAIN-
 TIFF.
   9. AS USED IN THIS SECTION:
   A.  "DRONE" MEANS ANY REMOTELY OR AUTONOMOUSLY PILOTED DEVICE, INCLUD-
 ING DEVICES THAT TRAVEL BY  AIR  (SUCH  AS  QUADCOPTERS  AND  FIXED-WING
 AIRCRAFT), LAND, OR WATER.
   B.  "LAW  ENFORCEMENT  AGENCY"  MEANS  A LAWFULLY ESTABLISHED STATE OR
 LOCAL PUBLIC AGENCY THAT IS RESPONSIBLE FOR THE PREVENTION AND DETECTION
 OF CRIME, THE ENFORCEMENT OF LOCAL GOVERNMENT CODES AND THE  ENFORCEMENT
 OF  PENAL,  TRAFFIC,  REGULATORY,  GAME OR CONTROLLED SUBSTANCE LAWS AND
 INCLUDES AN AGENT OF THE LAW ENFORCEMENT AGENCY.
   C. "LAW ENFORCEMENT PURPOSES" INCLUDES ACTIVITIES REGULARLY  CONDUCTED
 BY   LAW   ENFORCEMENT  AGENCIES,  INCLUDING  BUT  NOT  LIMITED  TO  THE
 PREVENTION, INVESTIGATION, DETECTION OR PROSECUTION OF CRIMINAL OFFENCES
 OR THE EXECUTION OF CRIMINAL PENALTIES, INCLUDING  BUT  NOT  LIMITED  TO
 CROWD  CONTROL AND SAFEGUARDING AGAINST AND THE PREVENTION OF THREATS TO
 PUBLIC SECURITY.
   D. "SEARCH AND RESCUE" MEANS THE EMPLOYMENT, COORDINATION, AND  UTILI-
 ZATION  OF  AVAILABLE  RESOURCES  AND  PERSONNEL  IN LOCATING, RELIEVING
 DISTRESS AND PRESERVING LIFE OF, AND REMOVING SURVIVORS FROM THE SITE OF
 A DISASTER, EMERGENCY, OR HAZARD TO A PLACE OF SAFETY IN CASE  OF  LOST,
 STRANDED, ENTRAPPED, OR INJURED PERSONS.
   E.  "ARMED  DRONE"  MEANS A DRONE EQUIPPED WITH A FIREARM OR DANGEROUS
 WEAPON AS DEFINED IN SECTION 265.00 OF THE PENAL LAW OR ANY  OTHER  TOOL
 DESIGNED TO CAUSE DEATH, SERIOUS BODILY INJURY, OR INCAPACITATION.
   10.  IF ANY PROVISION OF THIS SECTION OR ITS APPLICATION TO ANY PERSON
 OR CIRCUMSTANCE IS HELD INVALID, THE INVALIDITY SHALL NOT  AFFECT  OTHER
 PROVISIONS  OR  APPLICATIONS  OF  THIS SECTION WHICH CAN BE GIVEN EFFECT
 WITHOUT THE INVALID PROVISION  OR  APPLICATION,  AND  TO  THIS  END  THE
 PROVISIONS OF THIS SECTION ARE SEVERABLE.
   § 3. This act shall take effect immediately.