Protect Digital Privacy Rights

Section 1. The criminal procedure law is amended by adding a new article 695 to read as follows:

ARTICLE 695

SEARCH AND SEIZURE OF ELECTRONIC DEVICES AND ELECTRONIC

COMMUNICATIONS Section 695.05 Search and seizure of electronic devices and electronic

communications; definitions.

695.10 Search and seizure of electronic devices and electronic

communications; in general.

695.15 Search and seizure of electronic devices and electronic

communications; in an emergency.

695.20 Search and seizure of electronic devices and electronic

communications; when evidence can be suppressed.

695.25 Search and seizure of electronic devices and electronic

communications; annual report. § 695.05 Search and seizure of electronic devices and electronic commu-

nications; definitions.

As used in this article, the following definitions shall apply:

1. "Adverse result" means any of the following:

(a) danger to the life or physical safety of an individual;

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD03787-03-7

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(b) flight from prosecution;

(c) destruction of or tampering with evidence;

(d) intimidation of potential witnesses; or

(e) serious jeopardy to an investigation.

2. "Authorized possessor" means the person in possession of an electronic device when that person is the owner of the device or has been authorized to possess the device by the owner of the device.

3. "Electronic communication" means the transmission of signs, signals, writings, images, sounds, data, or intelligence of any nature in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system.

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 recipients of an electronic communication at any time during such communication; the time or date such communication was created, sent, or received and information pertaining to an individual or device involved in the communication including but not limited to an internet protocol address. Electronic communication information does not include subscriber information as defined in this article and does 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 as defined in this article, including a service that acts as an intermediary in the transmission of electronic communications, or that stores electronic communication information.

6. "Electronic device" means a device that stores, generates, or transmits information in electronic form.

7. "Electronic device information" means information stored in or generated through the operation of an electronic device, including information related to the location of such device at any time.

8. "Electronic information" means electronic communication information or electronic device information.

9. "Law enforcement agency" means any agency which is empowered by law to conduct an investigation or to make an arrest for an offense under the penal law, and an agency which is authorized by law to prosecute or participate in the prosecution of an offense under the penal law.

10. "Law enforcement officer" means any public servant who is empowered by law to conduct an investigation of or to make an arrest for an offense under the penal law, and any attorney authorized by law to prosecute or participate in the prosecution of an offense under the penal law.

11. "Location information" means information regarding the general or specific location of an electronic device.

12. "Service provider" means a person or entity that provides an electronic communication service.

13. "Specific consent" means consent provided directly to a law enforcement agency or law enforcement officer seeking information regarding an electronic communication, including but not limited to circumstances in which a law enforcement agency or law enforcement officer is the addressee or intended recipient or a member of the intended audience for such communication.

14. "Subscriber information" means the name, street address, telephone number, email address, or similar contact information provided by a subscriber to the service provider in order to establish or maintain a

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communication channel or an account for electronic communication services, as well as a subscriber identifier or account number, the period of time in which the subscriber receives service; and the types of services used by a user of or subscriber to a service provider. § 695.10 Search and seizure of electronic devices and electronic commu-

nications; in general.

1. Except as provided in this section, a law enforcement agency or law enforcement officer shall not:

(a) compel, induce or offer incentives for the production of or access to electronic communication information from a service provider;

(b) compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device; or

(c) access electronic device information by means of physical interaction or electronic communication with the electronic device.

2. A law enforcement agency or law enforcement officer may compel the production of or access to electronic communication information from a service provider, or compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device only under the following circumstances:

(a) pursuant to a warrant issued in accordance with article six hundred ninety of this title and subject to subdivision four of this section, unless the law enforcement agency or law enforcement officer is required under section 250.00 of the penal law and article seven hundred of this title to obtain a warrant issued pursuant to article seven hundred of this title; or

(b) pursuant to a warrant issued in accordance with article seven hundred of this title.

3. A law enforcement agency or law enforcement officer may access, without consent, as provided in this section, electronic device information by means of physical interaction or electronic communication with the device only as follows:

(a) pursuant to a warrant in accordance with article six hundred ninety of this title and subject to subdivision four of this section, unless the law enforcement agency or law enforcement officer is required under section 250.00 of the penal law and article seven hundred of this title to obtain a warrant issued pursuant to article seven hundred of this title;

(b) pursuant to a warrant issued in accordance with article seven hundred of this title;

(c) with the specific consent of the authorized possessor of the device;

(d) with the specific consent of the owner of the device, only when the device has been reported as lost or stolen; or

(e) if the law enforcement agency or law enforcement officer, in good faith, believes the device to be lost, stolen, or abandoned, provided that the law enforcement agency or law enforcement officer shall access electronic device information only for the purpose of attempting to identify, verify, or contact the owner or authorized possessor of the device.

4. Any warrant for electronic information shall:

(a) describe with particularity the information to be seized by specifying the time periods for which such information is sought and, as appropriate and reasonable, the target individuals or accounts, the applications or services covered, and the types of information sought; and

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(b) comply with all applicable provisions of state and federal law, including such provisions that prohibit or limit the use of search warrants, or that impose additional requirements, beyond the scope of this article, regarding search warrants.

(c) If an affidavit, declaration, deposition, allegation of fact or other material is submitted in support of the application for a warrant, the judge must file it with the court within twenty-four hours of the issuance of a warrant.

5. A service provider may voluntarily disclose electronic communication information or subscriber information when that disclosure is not otherwise prohibited by this article or by other provisions of state law or by federal law.

6. A law enforcement agency or law enforcement officer that receives electronic communication information provided voluntarily shall seal that information within ninety days and access to the information shall be prohibited except in one or more of the following circumstances:

(a) a law enforcement officer or agency obtains specific consent from the sender or recipient of the electronic communications about which information has been disclosed; or

(b) a law enforcement officer or agency obtains a court order authorizing access to the electronic communication information. A court shall issue an access order upon the same finding required for issuing a warrant pursuant to article six hundred ninety of the criminal procedure law and subject to subdivision four of this section.

(c) information retained by a law enforcement officer or agent that is subject to this provision shall not be shared with:

(i) persons or entities that do not agree to limit the use of the provided information to those purposes identified in the court authorization; and

(ii) persons or entities that:

(A) are not legally obligated to destroy the provided information upon the expiration or rescindment of the court's retention order; or

(B) do not voluntarily agree to destroy the provided information upon the expiration or rescindment of the court's retention order.

7. A law enforcement agency or law enforcement officer that obtains electronic information pursuant to an emergency involving danger of death or serious physical injury to a person, which requires access to the electronic information without delay, shall within three days after obtaining the electronic information file with the appropriate court an application for a warrant or order that authorizes access to such electronic information, or a motion seeking approval of the emergency disclosures that sets forth the facts giving rise to the emergency, and if applicable, a request supported by a sworn affidavit for an order delaying notification to the court as required under paragraph (a) of subdivision two of section 695.15 of this article. The court shall promptly rule on such application or motion, and shall order the immediate destruction of all information obtained, and immediate notification to the targets of a warrant or emergency request, pursuant to subdivision one of section 695.15 of this article, if such notice has not already been given, upon a finding that the facts did not give rise to an emergency, or upon a ruling that rejects the warrant or order application on any other ground.

8. This section does not limit the authority of a law enforcement agency or law enforcement officer to use an administrative, grand jury, trial, or civil discovery subpoena to do any of the following:

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(a) require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication;

(b) require an entity that provides electronic communications services to its officers, directors, employees, or agents for the purpose of carrying out their duties, to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee, or agent of the entity; or

(c) require a service provider to provide subscriber information.

9. This section does not prohibit the intended recipient of an electronic communication from voluntarily disclosing electronic communication information concerning that communication to a law enforcement agency or law enforcement officer.

10. Nothing in this section shall be construed to expand any authority under state law to compel the production of or access to electronic information. § 695.15 Search and seizure of electronic devices and electronic commu-

nications; in an emergency.