Bill Text: NY S05157 | 2017-2018 | General Assembly | Introduced
Bill Title: Requires courts to issue orders authorizing mobile phone surveillance devices or systems; adds provisions for determinations; provides for a thirty day time period with thirty day extension.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2018-01-03 - REFERRED TO CODES [S05157 Detail]
Download: New_York-2017-S05157-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 5157 2017-2018 Regular Sessions IN SENATE March 9, 2017 ___________ Introduced by Sen. RANZENHOFER -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the criminal procedure law, in relation to orders authorizing mobile phone surveillance devices or systems The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The article heading of article 705 of the criminal proce- 2 dure law, as added by chapter 744 of the laws of 1988, is amended to 3 read as follows: 4 PEN REGISTERS [AND], TRAP AND TRACE 5 DEVICES AND MOBILE PHONE SURVEILLANCE 6 DEVICES OR SYSTEMS 7 § 2. Section 705.00 of the criminal procedure law is amended by adding 8 a new subdivision 7 to read as follows: 9 7. "Mobile phone surveillance device or system" shall mean technology 10 that identifies, tracks, or locates cellular devices by forcing each 11 compatible cellular device in a given area to disconnect from its 12 service provider cell site and establish a new connection with the 13 device by mimicking a wireless carrier cell tower. During the process 14 of forcing connections from all compatible cellular devices in a given 15 area, the mobile phone surveillance device or system operator determines 16 which device is a desired surveillance target by downloading the identi- 17 fying data from each of the cellular devices connected to the mobile 18 phone surveillance device or system. Identifying data is transmitted to 19 the mobile phone surveillance device or system through radio waves. 20 § 3. Section 705.05 of the criminal procedure law, as added by chapter 21 744 of the laws of 1988, is amended to read as follows: 22 § 705.05 Pen register [and], trap and trace and mobile phone surveil- 23 lance authorizations; in general. 24 Under circumstances prescribed in this article, a justice may issue an 25 order authorizing the use of a pen register [or], a trap and trace EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD08093-01-7S. 5157 2 1 device, or a mobile phone surveillance device or system upon ex parte 2 application of an applicant who is authorized by law to investigate, 3 prosecute or participate in the prosecution of the designated crimes 4 which are the subject of the application. 5 § 4. Section 705.10 of the criminal procedure law, as added by chapter 6 744 of the laws of 1988, is amended to read as follows: 7 § 705.10 Orders authorizing the use of a pen register [or], a trap and 8 trace device, or a mobile phone surveillance device or 9 system; when issuable. 10 An order authorizing the use of a pen register [or], a trap and trace 11 device, or a mobile phone surveillance device or system may issue only: 12 1. Upon an appropriate application made in conformity with this arti- 13 cle; and 14 2. Upon a determination that an application sets forth specific, arti- 15 culable facts, warranting the applicant's reasonable suspicion that a 16 designated crime has been, is being, or is about to be committed and 17 demonstrating that the information likely to be obtained by use of a pen 18 register [or], trap and trace device, or mobile phone surveillance 19 device or system is or will be relevant to an ongoing criminal investi- 20 gation of such designated crime. 21 § 5. Section 705.15 of the criminal procedure law, as added by chapter 22 744 of the laws of 1988, is amended to read as follows: 23 § 705.15 Application for an order authorizing the use of a pen register 24 [or], a trap and trace device, or a mobile phone surveil- 25 lance device or system. 26 1. An ex parte application for an order or an extension of an order 27 authorizing the use of a pen register [or], a trap and trace device, or 28 a mobile surveillance device or system must be made to a justice in 29 writing, and must be subscribed and sworn to by the applicant. 30 2. The application must contain: 31 (a) The identity of the applicant and the identity of the law enforce- 32 ment agency conducting the investigation; and 33 (b) A statement of facts and circumstances sufficient to justify the 34 applicant's belief that an order authorizing the use of a pen register 35 [or], a trap and trace device, or a mobile phone surveillance device or 36 system should be issued, including (i) a statement of the specific facts 37 on the basis of which the applicant reasonably suspects that the desig- 38 nated crime has been, is being, or is about to be committed and demon- 39 strating that the information likely to be obtained by use of a pen 40 register [or], a trap and trace device, or a mobile phone surveillance 41 device or system is or will be relevant to an ongoing criminal investi- 42 gation of such designated offense, (ii) the identity, if known, of the 43 person to whom is leased or in whose name is listed the telephone line 44 to which the pen register or trap and trace device is to be attached, 45 (iii) the identity, if known, of the person who is the subject of the 46 criminal investigation, (iv) the number and, if known, the physical 47 location of the telephone line to which the pen register or trap and 48 trace device is to be attached and, in the case of a trap and trace 49 device, the geographic limits of the trap and trace order, (v) a partic- 50 ular description of the nature and location of the facilities from which 51 or the place where the communication is to be intercepted and a partic- 52 ular description of the type of the communications sought to be inter- 53 cepted by the mobile phone surveillance device or system and the 54 geographic limits of the order; and [(v)] (vi) a statement of the desig- 55 nated crime or crimes to which the information likely to be obtained byS. 5157 3 1 the use of the pen register [or], trap and trace device, or mobile phone 2 surveillance device or system relates; and 3 (c) A statement of the period of time for which the authorization for 4 the use of a pen register [or], a trap and trace device, or a mobile 5 phone surveillance device or system is required; and 6 (d) A statement of the facts concerning all previous applications, 7 known to the applicant, for an order authorizing the use of a pen regis- 8 ter [or], a trap and trace device, or a mobile phone surveillance device 9 or system involving any of the same persons or facilities specified in 10 the application, and the action taken by the justice on each such appli- 11 cation. 12 3. Allegations of fact in the application may be based either upon the 13 personal knowledge of the applicant or upon information and belief. If 14 the applicant personally knows the facts alleged, it must be so stated. 15 If the facts stated in the application are derived in whole or in part 16 from the statements of persons other than the applicant, the sources of 17 such facts must be either disclosed or described. 18 § 6. Section 705.20 of the criminal procedure law, as added by chapter 19 744 of the laws of 1988, is amended to read as follows: 20 § 705.20 Orders authorizing the use of a pen register [or], a trap and 21 trace device, or a mobile phone surveillance device or 22 system; determination of application. 23 1. If the justice determines on the basis of the facts submitted by 24 the applicant that grounds exist for the issue of an order authorizing 25 the use of a pen register [or], a trap and trace device, or a mobile 26 phone surveillance device or system pursuant to section 705.10 of this 27 article, the justice shall grant the application and issue an order 28 authorizing the use of a pen register [or], a trap and trace device, or 29 a mobile phone surveillance device or system, in accordance with subdi- 30 vision three of this section. 31 2. If the application does not conform to section 705.15 of this arti- 32 cle, or if the justice is not satisfied that grounds exist for the issu- 33 ance of an order authorizing the use of a pen register [or], a trap and 34 trace device, or a mobile phone surveillance device or system, the 35 application must be denied. 36 3. An order issued under this section must contain: 37 (a) the name of the applicant, date of issuance, and the subscription 38 and title of the issuing justice; and 39 (b) the identity, if known, of the person to whom is leased or in 40 whose name is listed the telephone line, or mobile phone line to which 41 the pen register [or], trap and trace device, or mobile phone surveil- 42 lance device or system is to be attached; and 43 (c) the identity, if known, of the person who is the subject of the 44 criminal investigation; and 45 (d) the number and, if known, the physical location of the telephone 46 line to which the pen register or trap and trace device is to be 47 attached and, in the case of a trap and trace device or mobile phone 48 surveillance device, the geographic limits of the trap and trace or 49 mobile phone surveillance order; and 50 (e) a statement of the designated crime or crimes to which the infor- 51 mation likely to be obtained by the pen register [or], trap and trace 52 device, or mobile phone surveillance device or system relates. 53 4. An order issued under this section shall direct, upon the request 54 of the applicant, the furnishing of information, facilities, and techni- 55 cal assistance necessary to accomplish the installation or use of theS. 5157 4 1 pen register [or], trap and trace device, or mobile phone surveillance 2 device or system under section 705.25 of this article. 3 § 7. Section 705.25 of the criminal procedure law, as added by chapter 4 744 of the laws of 1988, is amended to read as follows: 5 § 705.25 Pen register [or], trap and trace device, or mobile phone 6 surveillance device or system orders; time period and exten- 7 sions. 8 1. An order issued under this section shall authorize the installation 9 and use of a pen register or a trap and trace device for a period not to 10 exceed sixty days. 11 2. Extensions of such an order may be granted, but only upon an appli- 12 cation for an order under section 705.05 of this article and upon the 13 judicial finding required by subdivision one of section 705.10 of this 14 article. The period of extension shall be for a period not to exceed 15 sixty days. 16 3. No mobile phone surveillance order may authorize or approve the 17 interception of any communication for any period longer than is neces- 18 sary to achieve the objective of the authorization, or in any event 19 longer than thirty days. Such thirty day period shall begin on the date 20 designated in the order as the effective date. Extensions of such an 21 order may be granted, but only upon an application for an order under 22 section 705.05 of this article and upon the judicial finding required by 23 subdivision one of section 705.10 of this article. The period of exten- 24 sion shall be for a period not to exceed thirty days. 25 § 8. Section 705.30 of the criminal procedure law, as added by chapter 26 744 of the laws of 1988, is amended to read as follows: 27 § 705.30 Nondisclosure of existence of pen register [or], a trap and 28 trace device, or a mobile phone surveillance device or 29 system. 30 An order authorizing or approving the installation and use of a pen 31 register [or], a trap and trace device, or a mobile phone surveillance 32 device or system shall direct that: 33 1. the order be sealed until otherwise ordered by the court; and 34 2. the person owning or leasing the line to which the pen register or 35 a trap and trace device is attached, the service provider of the mobile 36 phone to which the mobile phone surveillance device or system is identi- 37 fying, tracking or locating, or who has been ordered by the court to 38 provide assistance to the applicant, not disclose the existence of the 39 pen register [or], trap and trace device, or mobile phone surveillance 40 device or system or the existence of the investigation to the listed 41 subscriber, or to any other person, unless or until otherwise ordered by 42 the court. 43 § 9. Subdivision 1 of section 700.05 of the criminal procedure law, as 44 amended by chapter 744 of the laws of 1988, is amended to read as 45 follows: 46 1. "Eavesdropping" means "wiretapping", "mechanical overhearing of 47 conversation," or the "intercepting or accessing of an electronic commu- 48 nication", as those terms are defined in section 250.00 of the penal 49 law, but does not include the use of a pen register [or], trap and trace 50 device, or a mobile phone surveillance device or system when authorized 51 pursuant to article 705 of this chapter. 52 § 10. This act shall take effect on the ninetieth day after it shall 53 have become a law.
