Establishes crimes relating to terrorism; repealer

Summary of provisions

Section 1 Repeals sections 1.56.00, 156.05, 156.10, 156.20, 156.25, 156.26, 156.27 and 156.50 of the penal law.

Section 2 Establishes definitions for the terms "computer network," "computer software or computer program," "computer operating system," "computer material," "computer program," "computer exploit," and "peripheral computer device."

Section 3 Establishes a new section computer intrusion in the third degree, a class A misdemeanor. A person would be guilty of computer intrusion in the third degree when he or she, without authorization, alters or destroys computer programs, installs a computer program on a computer without authorization, commits a denial of service attack or uses a computer or device connected and controlled by a computer.

Section 4 Establishes a new section computer intrusion in the second degree, a class E felony. A person would be guilty of computer intrusion in the second degree when he or she commits computer intrusion in the third degree and he or she has previously been convicted of any crime under this article, alters or destroys computer material, he or she commits the third degree crime with the intention of committing any felony or he or she causes damages In an aggregate Of $2500.

Section 5 Establishes a new section computer intrusion in the first degree, a class D felony. A person would be guilty of this crime when he or she has been convicted of computer intrusion in the third degree and causes damages in an aggregate of $10,000.

Section 6 Establishes a new crime of aggravated computer intrusion, a cleat E felony. A person is guilty of aggravated computer intrusion when he or she commits the crime of computer intrusion in the third degree and in furtherance of the crime encrypts a deleterious set of computer instructions, develops a computer exploit that modifies a computer oper- ating system making it difficult to repair, or creates an exploit to attack a specific vulnerability as identified by a software developer who develops a "patch" or software update for a computer operating system.

Section 7 Establishes the crime of use of a minor in the commission of a computer offense. A person is guilty of use of a minor in the commission of a computer offense when he or she intentionally influences a child to commit a computer offense or intentionally and willfully supplies the child with the information to commit a computer offense.

Section 8 Would add a new section 156.50 of the penal law to provide that it shall be a defense under sections 156.05, 156.10, 156.20, 156.25, and 156.40 if the defendant was authorized to use the computer pursuant to a service agreement and where such use 'Originated from a service location within the United States or Canada.

Section 9 Defines the term "Act of Cyberternorism."

Section 10 Amends article 490 of the penal law by adding a new section 490.28, creating the crime of cyberterrorium, a class El felony. A person would be guilty of the crime of cyberterrorism when, with intent to intimidate or coerce a civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government, he or she commits any of the crimes contained within article 156 of the penal law.

Section 11 Removes paragraph u) of subdivision 1 of section 240.20 of the Criminal Procedure Law that refers to sections repealed by section 1 of this act.

Section 12 Repeals section 250.30 of the Criminal Procedure Law.

Section 13 contains a severability clause.

Section 14 of the bill would amend the Penal Law to create the crimes of Agricultural Adulteration in the First Degree, punishable as a class C felony, and Agricultural Adulteration in the second Degree, punishable as a class D felony. These crimes are intended to appropriately crimi- nalize and punish the design, development, manufacture, or utilization of genetic, biological or chemical agents in order to contaminate or destroy agricultural products and livestock. If Agricultural Adultera-

tion in the First or Second Degree is committed with a terroristic intent, as defined in Article 490 of the Penal Law, it would be punished as a class B or class C felony, respectively.

Section 15 of the bill would amend the Penal Law to create the Crime of CyberTerrorism, which would be punishable as a Class D felony a "denial of service attack" (i.e., overloading a computer network so am to under- mine its capability) against a computer network administered by a government, utility or financial institution.

Sections 3, 4 and 5 of the bill would amend the Penal Law to include an aggregation of damage, including damages to any computer affected by the crimes of computer tampering.

Section 16 of the bill would amend the existing crime of Criminal. Impersonation in the Penal Law to add impersonating a pilot, or other member of an aviation flight or ground crew.

Section 17 of the bill would amend the Penal Law to include money laun- dering in support of terrorism offenses, structuring, and terrorism offenses within the definition of the term "criminal act" for purposes of an enterprise corruption prosecution.

Section 18 of the bill would amend the Penal Law to include the money laundering in support of terrorism crimes to the list of offenses for which a fine may be imposed.

sections 19 and 10 of the bill amend the Penal Law to create the new crime of "Structuring." The new offense of Structuring in the Second Degree, punishable as a class B felony, would penalize those who cause or attempt to cause a financial institution not to comply with federal filing requirements. The new offense of Structuring in the First Degree, punishable as a class D felony, would penalize those who commit the second degree offense with the intention of promoting the carrying on of criminal conduct or as part of a pattern of illegal activity involving more than $100,000 in any twelve month period.

Section 20 of the bill would amend the Penal Law to include concealing or disguising the nature or ownership of material support or resources as an element of the crime of soliciting or providing material support or resources for an act of Terrorism in the Second Degree.

Sections 22 of the bill would amend the Penal Law to create the new crimes of Criminal Facilitation of Terrorism and Conspiracy to Commit Terrorism which would apply traditional criminal facilitation and conspiracy concepts in the context of terror Crimes.

Section 21 the bill would amend the Penal Law to make conforming chang- es.

Section 22 of the bill would amend the Penal Law to add the amended crimes of Computer Tampering and the new crimes of Agricultural Adulter-

ation to the definition of "specified offense" for the crime of terror- ism.

Sections 16 and 17 of the bill would amend the Criminal Procedure Law to extend state jurisdiction to crimes committed on an aircraft that lands in New York.

Section 23 of the hill would amend the Criminal Procedure Law to elimi- nate in terrorist cases provisions of state law that require corrob- oration of accomplice testimony.

Sections 24 through 23 would amend the Criminal Procedure Law to clarify and improve the issuance of search warrants for out-of-state phone and computer services, and wireless telephones.

Sections 24, 25 and 25 of the bill would amend the Criminal Procedure Law to include the amended crimes of Computer Tampering, the new crimes of Agricultural Adulteration, as well as Money Laundering in support of Terrorism and Cyherterrorism offense to the list of offenses for which law enforcement may obtain an eaves- dropping or video surveillance warrants.

Section 27 of the bill would amend the Criminal Procedure Law to ensure that a terrorist is not deemed to have been prosecuted if such prose- cution occurred in a court of any jurisdiction within the United States other than a New York State court.

Section 28 of the bill would amend the Criminal Procedure Law to elimi- nate any restriction against the prosecution of terrorists for the crime of Enterprise Corruption when an underlying, criminal act of such prose- cution was also part of a previous prosecution for racketeering by the federal government of the government of another state.

Section 29 of the bill would amend the Criminal Procedure Law to require a court to consider whether a defendant has previously been prosecuted in a court in another jurisdiction within the United States based upon the same criminal act or transaction when deciding a motion to dismiss a terrorism indictment in furtherance of justice.

Section 30 of the bill would amend the Criminal Procedure Law to prevent the suppression of reliable evidence of guilt in terrorism cases where an officer acted in good faith.

Section 31 of the bill would amend the Criminal Procedure Law to permit roving interceptions by law enforcement in certain circumstances. This section includes a two year expiration provision.

Sections 32, 33 and 34 of the bill would amend the Civil Practice Law and Rules to subject terrorists' property located outside of New York State to civil forfeiture.

Section 35 of the bill would amend the tax Law to provide for the disclosure of tax related information to a prosecutor pursuant to an exparte order issued in connection with the investigation or prosecution of a crime. In addition, this section also would provide that tax infor- mation may be disclosed to a prosecutor.in response to a grand jury subpoena or a particularized written request of a prosecutor in connection with the investigation of a state or federal terrorism offense where the information sought is relevant to the commission of such offense. This section includes a two-year expiration provision.

Section 36 of the bill would provide that a person who violates the new Section 37 of the Tax Law is guilty of a misdemeanor.

Section 38 of the bill would add the Director of the Office of Homeland Security as an ex officio member of the Disaster Preparedness Commis- sion.

Justification

The tragic events of the September 11th attack, orches- trated by a handful of extremists cloaked in a false shroud of religious righteousness, and the continuing real and present threat to New York's cities and citizens, underscore the compelling need for further anti- terror measures to enhance public safety.

It is our nation's profound commitment to the principles of democracy and the rule of law - a commitment despised by terrorists - that enables us to respond efficiently and effectively to the outrageous criminal acts of terrorists. Creating new criminal offenses, increasing penalties and instituting procedural reforms to enhance the powers of law enforce- ment are necessary to combat their cowardly and inhumane acts of terror.

While experts debate when and how an attack on our food and agriculture industry may take place, all agree that, in addition to causing serious human and animal health consequences, an attack could create substantial fear and disruption among our citizens and result in billions of dollars of damage to this critical sector.

Despite its urban image, New York is an important agricultural state. The State's abundant Water supplies, fertile soils and favorable climat- ic conditions position New York's $3.1 billion agriculture industry as an important industry across the state. The industry is a fundamental component of the economy of virtually every community in rural New York, and the food processing, marketing and retail sectors are economically important in the State 's urban sectors as Well.

Overall, New York's 37,000 farms generate thousands of jobs and support a substantial agri-business industry, and generate billions of dollars annually for the State economy. In a table-top simulation of the intro- duction of Foot and mouth Disease into a single livestock market in Texas, evaluation of the daily movement records from that market revealed that the disease could move to 17 other states within 72 hours.

In light of the great harm that would be caused by an attack on New York's food or agriculture, the establishment of a specific crime of agricultural, adulteration, and adding this new crime to the definition of "specified offense" for the crime of terrorism will assist not only in punishing those responsible, but in providing a stronger deterrent to those considering such action in the future.

Likewise, New York City is home to the world's pre-eminent financial markets and institutions - markets and institutions abhorred by terror- ists, as evidenced by the horrific events of September 11, 2001. Although the spirit of capitalism and, democracy threatens the autocrat- ic rule of terrorist leaders, terrorist organizations will continue to function unless meaningful steps are taken to cut off their networks of financial support.

That terrorists have raised, disguised, and used the money necessary to train and hone their lethal trade in our midst makes abundantly clear the need to enable law enforcement to uncover these terror proceeds and punish severely those who manipulate this money for terrorist purposes.

By creating the state crimes of Structuring, Criminal Facilitation and Conspiracy in Furtherance of Terrorism, this bill appropriate- ly.recognizes the need to track and trace the relatively small amount of money needed to perpetrate fiendish acts of terrorism that could cost countless priceless lives and billions of dollars.

The citizens of New York cannot afford to bestow on defendants accused of terrorist acts the windfall of the exclusionary rule if a police officer makes a technical error in the recovery of evidence. TO prevent terrorists from escaping justice on account of good faith errors by law enforcement officials during searches and seizures, the bill would amend existing law to ensure that a good faith error made by a law enforcement official in a terrorist case will not necessitate the exclusion of reli- able evidence of guilt and will prevent a terrorist from getting off on a "technicality."

Terrorists have benefited from major technological advancements in cellular communications. Cellular phones, once a rarity, have become as common as home telephones. Regrettably, these phones have enabled crimi- nals to thwart law enforcement initiatives simply by changing phones. Current law requires separate judicial authorization, a timely and cumbersome process, for each phone to be monitored by authorized law enforcement.

This bill, therefore, would remove this requirement and enable judges to authorize Proving wiretaps" so that law enforcement is able to monitor all communications by persons reasonably suspected of involvement in terrorist activities regardless of how many cell phones they use to Conduct and plan and organize their illegal activities.

Technology has exponentially evolved during the two decades since the state law that created computer crimes was enacted. For example, we use

computers to store banking records, credit card data, medical history and other presumably confidential information that is transferred millions of times a day through cyberspace.

Computers control the systems that provide us with power, emergency services and transportation. People with extensive computer knowledge and nefarious motives have also evolved With the times and economic landscape of cyberspace. Therefore, it is necessary that the penal law punish computer criminals who may not be violent but nonetheless pose a significant threat to individuals and the economy.

This legislation also holds accountable those who conduct cyber attacks against utilities and financial institutions. Existing law does not contemplate systemic, coordinated and well executed electronic attacks against critical, computer-operated systems such as government adminis- tration, electrical grids, water delivery systems, emergency services, and financial systems. Current prohibitions in the penal law deal with individual or very small-scale efforts to tamper with a single computer, not coordinated and systematic attacks Against the large-scale computer systems that control critical infrastructure assets, protect public safety and maintain stability in New York State's Financial industries.

Recognizing the grave nature of terrorist acts, the bill also would enhance the prosecution of terrorists in the following significant ways:

(1) Permitting the prosecution of all terrorists under all circumstances in state courts, despite the pendency of a prosecution or a prior prose- cution in a jurisdiction other than a New York State court;

(2) Eliminating in terrorist cases provisions of state law that require corroboration of accomplice testimony (under federal law and in a major- ity of states, the corroboration of accomplice testimony is not required);

(3) Enhancing the authority of law enforcement to investigate terrorist activity by authorizing in appropriate cases the release of the tax returns to criminal investigators and

(4) Strengthening the authority of law enforcement to subject terror- ists, property located outside of New York State to civil forfeiture.

(5) Defining cyberterrorism and updating the 20-year old computer crime section of the penal law and crack down on backers that illegally obtain personal financial, medical or other information, alter or destroy computer programs, install computer programs without authorization, use a computer or device connected and controlled by a computer without authorization, create and send computer "viruses" and "worms" designed to damage or destroy a computer system or use children to commit a computer offense.

The images of the savage attack on the World Trade Center and the Penta- gon on September 11, 2001 will be forever remembered by all Americans.

The slaughter of innocent civilians, and the sacrifice of selfless police officers, brave firefighters and other heroic emergency services personnel, will never be forgotten. A crime of unimaginable horror, terrorism tears at the very fabric of our society, threatening to rob us of our commitment to freedom, justice and democracy.

This bill would protect that commitment by providing law enforcement with the necessary tools to investigate, prosecute and punish terror- ists.

Prior legislative history

NEW BILL

Fiscal implications

None Noted