Creates the New York electronic communications privacy act; requires government agents and agencies to obtain a search warrant for physical or electronic access to electronic device information.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1880A
SPONSOR: Dinowitz (MS) TITLE OF BILL:
An act to amend the criminal procedure law, in relation to establishing
the New York electronic communications privacy act ("NYECPA")
PURPOSE OR GENERAL IDEA OF BILL:
This bill would require a search warrant for access to all aspects of
electronic communications except where federal law allows voluntary
disclosure.
SUMMARY OF SPECIFIC PROVISIONS:
Section one adds article 695 to the criminal procedure law to require
government agents and agencies to obtain a search warrant for physical
or electronic access to electronic device information.The warrant must
be described with particularity and the government agency must provide
contemporaneous notice to the target of the warrant, with exceptions for
emergency situations. The bill would direct all government agencies that
obtain electronic communication information pursuant to this bill to
annually report information to the Attorney General. The bill provides
enforcement mechanisms if government agencies or agents fail to comply
with the provisions of the bill.
Section two provides the effective date.
JUSTIFICATION:
New York residents increasingly rely on mobile devices, computers,
tablets, and the internet to connect, communicate, work, research infor-
mation and manage personal matters, including sensitive or confidential
matters. At present, federal and state laws protecting the content of
these private electronic communications are antiquated and fail to
address the surveillance capabilities of modern technology. In this
digital age, it is important to protect the privacy and due process
rights of New York residents by ensuring New York privacy laws are
updated to reflect the capabilities and consequences of new technology.
In two recent decisions, United States v. Jones and Riley v. Califor-
nia, the U.S. Supreme Court upheld Fourth Amendment privacy rights
against warrantless government surveillance. Justice Allow in Jones also
prompted lawmakers to take action, noting that in circumstances involv-
ing dramatic technological change "a legislative body is well suited to
gauge changing public attitudes, to draw detailed lines, and to balance
privacy and public safety in a comprehensive way." The New York Elec-
tronic Communications Privacy Act heeds the call in Jones for the legis-
lature to act and to safeguard New Yorkers, spur innovation, and support
public safety by updating privacy, law to match the modern digital
world. This bill will make sure that the law enforcement officers go to
a judge and get a warrant before they can access sensitive information,
including data from personal electronic devices, emails, digital docu-
ments, text messages, and location information under normal circum-
stances. The bill also includes thoughtful exceptions to ensure that
they can continue to effectively and efficiently protect public safety.
The bill's notice, reporting, and enforcement provisions make sure that
there is a proper transparency and oversight mechanisms to ensure that
the law is followed and there is parity in criminal proceedings.
PRIOR LEGISLATIVE HISTORY:
2021-22: A.5045 - Third Reading Calendar
2019-20: A.2620 - Codes
2017-18: A.1895-A - Codes/S.6044 - Codes
2015-16: A.9235 - Rules
FISCAL IMPLICATIONS:
None to the State.
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
1880--A
Cal. No. 11
2023-2024 Regular Sessions
IN ASSEMBLY
January 23, 2023
___________
Introduced by M. of A. DINOWITZ, JOYNER, L. ROSENTHAL, STECK, WALKER,
WEPRIN, VANEL, KELLES -- Multi-Sponsored by -- M. of A. COOK, DAVILA,
GLICK, RAMOS, ROZIC, SIMON -- read once and referred to the Committee
on Codes -- reported from committee, advanced to a third reading,
amended and ordered reprinted, retaining its place on the order of
third reading
AN ACT to amend the criminal procedure law, in relation to establishing
the New York electronic communications privacy act ("NYECPA")
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The criminal procedure law is amended by adding a new arti-
2 cle 695 to read as follows:
3 ARTICLE 695
4 SEARCH AND SEIZURE OF ELECTRONIC DEVICES AND ELECTRONIC
5 COMMUNICATIONS
6 Section 695.05 Search and seizure of electronic devices and electronic
7 communications; definitions.
8 695.10 Search and seizure of electronic devices and electronic
9 communications; in general.
10 695.15 Search and seizure of electronic devices and electronic
11 communications; in an emergency.
12 695.20 Search and seizure of electronic devices and electronic
13 communications; when evidence can be suppressed.
14 695.25 Search and seizure of electronic devices and electronic
15 communications; annual report.
16 § 695.05 Search and seizure of electronic devices and electronic commu-
17 nications; definitions.
18 As used in this article, the following definitions shall apply:
19 1. "Adverse result" means any of the following:
20 (a) danger to the life or physical safety of an individual;
21 (b) flight from prosecution;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01024-03-3
A. 1880--A 2
1 (c) destruction of or tampering with evidence;
2 (d) intimidation of potential witnesses; or
3 (e) serious jeopardy to an investigation.
4 2. "Authorized possessor" means the person in possession of an elec-
5 tronic device when that person is the owner of the device or has been
6 authorized to possess the device by the owner of the device.
7 3. "Electronic communication" means the transmission of signs,
8 signals, writings, images, sounds, data, or intelligence of any nature
9 in whole or in part by a wire, radio, electromagnetic, photoelectric, or
10 photo-optical system.
11 4. "Electronic communication information" means information related to
12 an electronic communication or the use of an electronic communication
13 service including, but not limited to the contents, sender, recipients,
14 or format of an electronic communication; the precise or approximate
15 location of the sender or recipients of an electronic communication at
16 any time during such communication; the time or date such communication
17 was created, sent, or received and information pertaining to an individ-
18 ual or device involved in the communication including but not limited to
19 an internet protocol address. Electronic communication information does
20 not include subscriber information as defined in this article and does
21 not include information in the public domain.
22 5. "Electronic communication service" means a service that provides
23 subscribers to or users of such service the ability to send or receive
24 an electronic communication as defined in this article, including a
25 service that acts as an intermediary in the transmission of electronic
26 communications, or that stores electronic communication information.
27 6. "Electronic device" means a device that stores, generates, or tran-
28 smits information in electronic form.
29 7. "Electronic device information" means information stored in or
30 generated through the operation of an electronic device, including
31 information related to the location of such device at any time.
32 8. "Electronic information" means electronic communication information
33 or electronic device information.
34 9. "Law enforcement agency" means any agency which is empowered by law
35 to conduct an investigation or to make an arrest for an offense under
36 the penal law, and an agency which is authorized by law to prosecute or
37 participate in the prosecution of an offense under the penal law.
38 10. "Law enforcement officer" means any public servant who is
39 empowered by law to conduct an investigation of or to make an arrest for
40 an offense under the penal law, and any attorney authorized by law to
41 prosecute or participate in the prosecution of an offense under the
42 penal law.
43 11. "Location information" means information regarding the general or
44 specific location of an electronic device.
45 12. "Service provider" means a person or entity that provides an elec-
46 tronic communication service.
47 13. "Specific consent" means consent provided directly to a law
48 enforcement agency or law enforcement officer seeking information
49 regarding an electronic communication, including but not limited to
50 circumstances in which a law enforcement agency or law enforcement offi-
51 cer is the addressee or intended recipient or a member of the intended
52 audience for such communication.
53 14. "Subscriber information" means the name, street address, telephone
54 number, email address, or similar contact information provided by a
55 subscriber to the service provider in order to establish or maintain a
56 communication channel or an account for electronic communication
A. 1880--A 3
1 services, as well as a subscriber identifier or account number, the
2 period of time in which the subscriber receives service; and the types
3 of services used by a user of or subscriber to a service provider.
4 § 695.10 Search and seizure of electronic devices and electronic commu-
5 nications; in general.
6 1. Except as provided in this section, a law enforcement agency or law
7 enforcement officer shall not:
8 (a) compel, induce or offer incentives for the production of or access
9 to electronic communication information from a service provider;
10 (b) compel the production of or access to electronic device informa-
11 tion from any person or entity other than the authorized possessor of
12 the device; or
13 (c) access electronic device information by means of physical inter-
14 action or electronic communication with the electronic device.
15 2. A law enforcement agency or law enforcement officer may compel the
16 production of or access to electronic communication information from a
17 service provider, or compel the production of or access to electronic
18 device information from any person or entity other than the authorized
19 possessor of the device only under the following circumstances:
20 (a) pursuant to a warrant issued in accordance with article six
21 hundred ninety of this title and subject to subdivision four of this
22 section, unless the law enforcement agency or law enforcement officer is
23 required under section 250.00 of the penal law and article seven hundred
24 of this title to obtain a warrant issued pursuant to article seven
25 hundred of this title; or
26 (b) pursuant to a warrant issued in accordance with article seven
27 hundred of this title.
28 3. A law enforcement agency or law enforcement officer may access,
29 without consent, as provided in this section, electronic device informa-
30 tion by means of physical interaction or electronic communication with
31 the device only as follows:
32 (a) pursuant to a warrant in accordance with article six hundred nine-
33 ty of this title and subject to subdivision four of this section, unless
34 the law enforcement agency or law enforcement officer is required under
35 section 250.00 of the penal law and article seven hundred of this title
36 to obtain a warrant issued pursuant to article seven hundred of this
37 title;
38 (b) pursuant to a warrant issued in accordance with article seven
39 hundred of this title;
40 (c) with the specific consent of the authorized possessor of the
41 device;
42 (d) with the specific consent of the owner of the device, only when
43 the device has been reported as lost or stolen; or
44 (e) if the law enforcement agency or law enforcement officer, in good
45 faith, believes the device to be lost, stolen, or abandoned, provided
46 that the law enforcement agency or law enforcement officer shall access
47 electronic device information only for the purpose of attempting to
48 identify, verify, or contact the owner or authorized possessor of the
49 device.
50 4. Any warrant for electronic information shall:
51 (a) describe with particularity the information to be seized by speci-
52 fying the time periods for which such information is sought and, as
53 appropriate and reasonable, the target individuals or accounts, the
54 applications or services covered, and the types of information sought;
55 and
A. 1880--A 4
1 (b) comply with all applicable provisions of state and federal law,
2 including such provisions that prohibit or limit the use of search
3 warrants, or that impose additional requirements, beyond the scope of
4 this article, regarding search warrants.
5 (c) If an affidavit, declaration, deposition, allegation of fact or
6 other material is submitted in support of the application for a warrant,
7 the judge must file it with the court within twenty-four hours of the
8 issuance of a warrant.
9 5. A service provider may voluntarily disclose electronic communi-
10 cation information or subscriber information when that disclosure is not
11 otherwise prohibited by this article or by other provisions of state law
12 or by federal law.
13 6. A law enforcement agency or law enforcement officer that receives
14 electronic communication information provided voluntarily shall seal
15 that information within ninety days and access to the information shall
16 be prohibited except in one or more of the following circumstances:
17 (a) a law enforcement officer or agency obtains specific consent from
18 the sender or recipient of the electronic communications about which
19 information has been disclosed; or
20 (b) a law enforcement officer or agency obtains a court order author-
21 izing access to the electronic communication information. A court shall
22 issue an access order upon the same finding required for issuing a
23 warrant pursuant to article six hundred ninety of this title and subject
24 to subdivision four of this section.
25 (c) information retained by a law enforcement officer or agent that is
26 subject to this provision shall not be shared with:
27 (i) persons or entities that do not agree to limit the use of the
28 provided information to those purposes identified in the court authori-
29 zation; and
30 (ii) persons or entities that:
31 (A) are not legally obligated to destroy the provided information upon
32 the expiration or rescindment of the court's retention order; or
33 (B) do not voluntarily agree to destroy the provided information upon
34 the expiration or rescindment of the court's retention order.
35 7. A law enforcement agency or law enforcement officer that obtains
36 electronic information pursuant to an emergency involving danger of
37 death or serious physical injury to a person, which requires access to
38 the electronic information without delay, shall within three days after
39 obtaining the electronic information file with the appropriate court an
40 application for a warrant or order that authorizes access to such elec-
41 tronic information, or a motion seeking approval of the emergency
42 disclosures that sets forth the facts giving rise to the emergency, and
43 if applicable, a request supported by a sworn affidavit for an order
44 delaying notification to the court as required under paragraph (a) of
45 subdivision two of section 695.15 of this article. The court shall
46 promptly rule on such application or motion, and shall order the immedi-
47 ate destruction of all information obtained, and immediate notification
48 to the targets of a warrant or emergency request, pursuant to subdivi-
49 sion one of section 695.15 of this article, if such notice has not
50 already been given, upon a finding that the facts did not give rise to
51 an emergency, or upon a ruling that rejects the warrant or order appli-
52 cation on any other ground.
53 8. This section does not limit the authority of a law enforcement
54 agency or law enforcement officer to use an administrative, grand jury,
55 trial, or civil discovery subpoena to do any of the following:
A. 1880--A 5
1 (a) require an originator, addressee, or intended recipient of an
2 electronic communication to disclose any electronic communication infor-
3 mation associated with that communication;
4 (b) require an entity that provides electronic communications services
5 to its officers, directors, employees, or agents for the purpose of
6 carrying out their duties, to disclose electronic communication informa-
7 tion associated with an electronic communication to or from an officer,
8 director, employee, or agent of the entity; or
9 (c) require a service provider to provide subscriber information.
10 9. This section does not prohibit the intended recipient of an elec-
11 tronic communication from voluntarily disclosing electronic communi-
12 cation information concerning that communication to a law enforcement
13 agency or law enforcement officer.
14 10. Nothing in this section shall be construed to expand any authority
15 under state law to compel the production of or access to electronic
16 information.
17 § 695.15 Search and seizure of electronic devices and electronic commu-
18 nications; in an emergency.
19 1. Except as otherwise provided in this section, a law enforcement
20 agency or law enforcement officer that executes a warrant, or obtains
21 electronic information in an emergency pursuant to section 695.10 of
22 this article, shall serve upon or deliver to the target of a warrant or
23 emergency request by registered or first-class mail, electronic mail, or
24 by other means reasonably calculated to be effective, a notice that
25 informs the recipient that information about the recipient has been
26 compelled or requested. Such notice shall state with reasonable specif-
27 icity the nature of the government investigation pursuant to which the
28 information is sought. The notice shall include a copy of the warrant or
29 a written statement setting forth facts giving rise to the emergency.
30 The notice shall be provided contemporaneously with the execution of a
31 warrant, or, in the case of an emergency, within three days after
32 obtaining the electronic information. The target of the warrant is
33 entitled to request a copy of the electronic information obtained in the
34 same form it was received upon request. Notice shall include
35 instructions for requesting copies and a law enforcement agency and law
36 enforcement officer must provide copies of information obtained in the
37 same form within three days of receiving the request from the target of
38 the warrant.
39 2. (a) When a warrant is sought or electronic information is obtained
40 in an emergency under section 695.10 of this article, the law enforce-
41 ment agency or law enforcement officer may submit a request to a court
42 supported by a sworn affidavit for an order delaying notification and
43 prohibiting any party providing information from notifying any other
44 party that information has been sought. The court shall issue the order
45 if the court determines that there is reason to believe that notifica-
46 tion may have an adverse result, but only for the period of time that
47 the court finds there is reason to believe that the notification may
48 have that adverse result, and not to exceed ninety days.
49 (b) The court may grant extensions of the delay of up to ninety days
50 each on the same grounds as provided in paragraph (a) of this subdivi-
51 sion.
52 (c) Upon expiration of the period in which notification is delayed, a
53 law enforcement agency or law enforcement officer shall serve upon the
54 identified targets of a warrant or deliver to those targets by regis-
55 tered or first-class mail, electronic mail, or other means reasonably
56 calculated to be effective as specified by the court issuing the order
A. 1880--A 6
1 authorizing delayed notification, a document that includes the informa-
2 tion described in subdivision one of this section, along with a copy of
3 all electronic information obtained in the same form it was received,
4 and a statement of the grounds for the court's determination to grant a
5 delay in notifying the individual.
6 3. If there is no identified target of a warrant or emergency request
7 at the time of its issuance, the law enforcement agency or law enforce-
8 ment officer shall submit to the attorney general of this state within
9 three days of the execution of the warrant or issuance of the request a
10 report regarding the information required in subdivision one of this
11 section. If an order delaying notice is obtained pursuant to subdivision
12 two of this section, the law enforcement agency or law enforcement offi-
13 cer shall submit to the attorney general upon the expiration of the
14 period of delay of the notification a report regarding the information
15 required in paragraph (c) of subdivision two of this section. The attor-
16 ney general's office shall publish such reports on its internet website
17 within ninety days of receipt. The attorney general shall redact names
18 and other personal identifying information from the reports.
19 4. Except as otherwise provided in this section, nothing in this arti-
20 cle shall prohibit or limit a service provider or any other party from
21 disclosing information about any request or demand for electronic infor-
22 mation.
23 § 695.20 Search and seizure of electronic devices and electronic commu-
24 nications; when evidence can be suppressed.
25 1. Persons who are party to or otherwise subject to a trial, hearing,
26 or other legal or administrative proceeding may move to suppress elec-
27 tronic information obtained or retained in violation of this article,
28 the United States Constitution, State Constitution, the New York State
29 Constitution or the provisions of the criminal procedure law. The motion
30 shall be made and shall be subject to review by a court in accordance
31 with the procedures set forth in article seven hundred ten of this
32 title.
33 2. The attorney general of this state may commence a civil action to
34 compel a law enforcement agency or law enforcement officer to comply
35 with the provisions of this article. This does not preclude action by
36 an individual, service provider, or other recipient of a warrant, order,
37 or other legal process that is inconsistent with this article.
38 3. An individual, service provider or other recipient of a warrant,
39 order, or other legal process may petition the issuing court to quash or
40 modify the warrant, order, or process, or to order the destruction of
41 information that is sought pursuant to such a warrant, order or other
42 legal process, on the basis that the warrant, order or process violates
43 the United States Constitution, the New York State Constitution, or is
44 otherwise contrary to federal or state law. The warrant recipient may
45 also move the quash on the basis that the information or records
46 requested are unusually voluminous in nature or compliance with such
47 order otherwise would cause an undue burden on such provider. The
48 court's decision to grant or deny that petition, in whole or in part,
49 filed under this paragraph is immediately appealable pursuant to section
50 fifty-seven hundred one of the civil practice law and rules.
51 4. A state, territory or commonwealth of the United States and foreign
52 and domestic corporations as well as officers, employees, and agents of
53 these entities shall not be subject to a cause of action for providing
54 records, information, facilities, or other forms of assistance in
55 accordance with the terms of a warrant, court order, statutory authori-
56 zation, emergency certification, or wiretap order issued pursuant to
A. 1880--A 7
1 this article. This does not preclude a cause of action for providing
2 records, information, facilities, or other forms of assistance in a
3 manner that is inconsistent with this article.
4 § 695.25 Search and seizure of electronic devices and electronic commu-
5 nications; annual report.
6 1. A law enforcement agency or law enforcement officer that obtains
7 electronic communication information pursuant to this article shall make
8 an annual report to the attorney general of this state regarding such
9 information. The report shall be made on or before February first, two
10 thousand twenty-four, and on February first of each year thereafter. To
11 the extent such information can be reasonably determined, the report
12 shall include the following:
13 (a) the total number of times electronic information was sought or
14 obtained pursuant to this article;
15 (b) the number of times such information was sought or obtained, and
16 the number of records obtained for each of the following categories the
17 types of electronic information:
18 (i) electronic communication content;
19 (ii) location information;
20 (iii) electronic device information (not including location informa-
21 tion); and
22 (iv) other electronic communication information.
23 (c) for each type of information identified in paragraph (b) of this
24 subdivision:
25 (i) the number of times the information was sought or obtained pursu-
26 ant to:
27 (1) wiretap orders obtained pursuant to this article;
28 (2) search warrants obtained pursuant to this article; and
29 (3) emergency requests subject to subdivision eight of section 695.10
30 of this article.
31 (ii) the total number of individuals whose information was sought or
32 obtained;
33 (iii) the total number of instances in which information was sought or
34 obtained that did not specify a target individual from whom or about
35 whom the information was requested;
36 (iv) for demands or requests issued upon a service provider, the
37 number of such demands or requests complied with in full, partially
38 complied with, and not complied with;
39 (v) the number of times notice to targeted individuals of a warrant,
40 court order, statutory authorization, emergency certification, or wire-
41 tap order issued pursuant to this article was delayed and the average
42 length of the delay;
43 (vi) the number of times records obtained pursuant to a warrant, court
44 order, statutory authorization, emergency certification, or wiretap
45 order issued pursuant to this article were shared with other government
46 entities or any department or agency of the federal government, and the
47 agencies with which such records were shared;
48 (vii) the average period of time for which location information was
49 obtained or received; and
50 (viii) the number of instances in which electronic information sought
51 or obtained pursuant to this article was relevant to a criminal proceed-
52 ing that led to a conviction.
53 2. On or before April first, two thousand twenty-five, and each April
54 first thereafter, the attorney general's office shall publish on its
55 internet website a summary aggregating data related to each type of
A. 1880--A 8
1 electronic communication identified in paragraphs (a), (b) and (c) of
2 subdivision one of this section by county.
3 3. Nothing in this article shall prohibit or restrict a service
4 provider from producing an annual report summarizing the demands or
5 requests it receives under this article.
6 § 2. This act shall take effect immediately.
