S T A T E   O F   N E W   Y O R K
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                                 2642--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 23, 2013
                               ___________

Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Finance -- recommitted  to
  the  Committee  on Finance in accordance with Senate Rule 6, sec. 8 --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted to said committee

AN  ACT to amend the executive law, in relation to oversight of intelli-
  gence data centers

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  The executive law is amended by adding a new article 11-A
to read as follows:
                              ARTICLE 11-A
   OFFICE OF DATA PROTECTION AND PRIVACY OVERSIGHT FOR NEW YORK STATE
           FUSION CENTERS AND OTHER INTELLIGENCE DATA CENTERS
SECTION 232. DEFINITIONS.
        233. ESTABLISHMENT.
  S 232. DEFINITIONS. AS USED IN THIS ARTICLE, THE FOLLOWING WORDS SHALL
HAVE THE FOLLOWING MEANINGS:
  1. "OFFICE" SHALL MEAN THE OFFICE OF DATA PROTECTION AND PRIVACY OVER-
SIGHT FOR NEW YORK STATE INTELLIGENCE DATA CENTERS.
  2. "INTELLIGENCE DATA CENTER" SHALL  MEAN  ANY  ENTITY  WHOSE  MISSION
INCLUDES  COLLECTING, ANALYZING, AND SHARING INTELLIGENCE DATA AND OTHER
DATA FOR LAW ENFORCEMENT OR HOMELAND SECURITY PURPOSES.
  3. "PERSONALLY IDENTIFIABLE INFORMATION" SHALL MEAN ALL PERSONAL  DATA
AND  ANY DATA ELEMENT OR COMBINATION OF DATA ELEMENTS THAT IDENTIFIES OR
COULD BE USED TO IDENTIFY ANY INDIVIDUAL, INCLUDING, BUT NOT LIMITED TO,
BY ANY OF THE FOLLOWING:
  (A) NAME OF PERSON;
  (B) DATE OF BIRTH;
  (C) ADDRESS OF RESIDENCE;
  (D) ELECTRONIC PASSWORD;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07097-02-4
              

S. 2642--A                          2

  (E) UNIQUE ACCOUNT NUMBER;
  (F) PHONE NUMBER;
  (G) BIOMETRIC IDENTIFIERS INCLUDING SIGNATURE, DNA, FINGERPRINTS, IRIS
OR  RETINAL  SCANS, PALM TELEMETRY, PHOTOGRAPH, FACIAL RECOGNITION MEAS-
UREMENTS OR ANY OTHER BIOMETRIC MEASUREMENT;
  (H) E-MAIL ADDRESS;
  (I) INTERNET PROTOCOL ADDRESS;
  (J) WEB ADDRESS; OR
  (K) ANY OTHER UNIQUE IDENTIFIER.
  S 233. ESTABLISHMENT. 1. THERE IS HEREBY  ESTABLISHED  THE  OFFICE  OF
DATA  PROTECTION  AND  PRIVACY  OVERSIGHT  FOR INTELLIGENCE DATA CENTERS
OPERATING IN NEW YORK STATE.
  2. THE OFFICE SHALL BE UNDER THE  DIRECTION  OF  A  COMMISSIONER,  WHO
SHALL DEVOTE FULL TIME TO HIS OR HER DUTIES.
  3.  THE COMMISSIONER SHALL BE APPOINTED BY THE GOVERNOR, AND CONFIRMED
BY THE SENATE, AND SHALL SERVE FOR A TERM OF THREE YEARS.
  4. (A) THE PERSON SO APPOINTED SHALL BE  SELECTED  WITHOUT  REGARD  TO
PARTY  AFFILIATION AND SOLELY ON THE BASIS OF INTEGRITY AND DEMONSTRATED
ABILITY IN DATA MANAGEMENT, PRIVACY PROTECTION,  PUBLIC  ADMINISTRATION,
LAW, MANAGEMENT ANALYSIS, OR THE ADMINISTRATION OF JUSTICE.
  (B)  IN  CASE OF A VACANCY IN THE POSITION OF THE COMMISSIONER, HIS OR
HER SUCCESSOR SHALL BE APPOINTED IN THE SAME MANNER  FOR  THE  UNEXPIRED
TERM.  NO PERSON SHALL BE APPOINTED FOR MORE THAN TWO THREE-YEAR TERMS.
  (C)  THE PERSON SO APPOINTED MAY BE REMOVED FROM OFFICE, FOR CAUSE, BY
THE GOVERNOR. SUCH CAUSE MAY INCLUDE SUBSTANTIAL NEGLECT OF DUTY,  GROSS
MISCONDUCT  OR  CONVICTION  OF  A  CRIME. THE REASONS FOR REMOVAL OF THE
COMMISSIONER SHALL BE STATED IN WRITING AND SHALL INCLUDE THE BASIS  FOR
SUCH  REMOVAL. SUCH WRITING SHALL BE SENT TO THE LEGISLATURE, THE GOVER-
NOR, AND THE SECRETARY OF STATE AT THE TIME OF THE REMOVAL AND SHALL  BE
DEEMED TO BE A PUBLIC DOCUMENT.
  5.  (A)  THE  COMMISSIONER MAY, SUBJECT TO APPROPRIATION, APPOINT SUCH
OTHER PERSONNEL AS MAY BE DEEMED NECESSARY TO PERFORM THE DUTIES OF  THE
OFFICE.
  (B)  THE  COMMISSIONER SHALL BE AUTHORIZED TO APPLY FOR, AND ACCEPT ON
BEHALF OF THE STATE, FEDERAL, LOCAL OR PRIVATE GRANTS,  BEQUESTS,  GIFTS
OR  CONTRIBUTIONS  FOR  THE PURPOSE OF CARRYING OUT THE FUNCTIONS OF THE
OFFICE.
  (C) THE COMMISSIONER SHALL DEVELOP PROCEDURES FOR THE OFFICE APPROPRI-
ATE TO THE EFFECTIVE PERFORMANCE OF ITS DUTIES.
  6. THE COMMISSIONER OR HIS OR HER DESIGNEES SHALL HAVE ACCESS  AT  ANY
AND  ALL  REASONABLE  TIMES TO ANY FACILITY, PROGRAM, OR PORTION THEREOF
THAT IS OPERATED BY INTELLIGENCE DATA CENTERS IN THE STATE, AND  TO  ALL
RECORDS,  REPORTS,  MATERIALS,  AND  EMPLOYEES IN ORDER TO CARRY OUT THE
RESPONSIBILITIES OF THE OFFICE.
  7. THE COMMISSIONER  MAY  REQUEST  THE  ATTENDANCE  AND  TESTIMONY  OF
WITNESSES  AND  THE  PRODUCTION  OF  DOCUMENTS,  PAPERS, BOOKS, RECORDS,
REPORTS, REVIEWS, RECOMMENDATIONS, CORRESPONDENCE, DATA AND OTHER INFOR-
MATION THAT THE COMMISSIONER REASONABLY  BELIEVES  IS  RELEVANT  TO  THE
OVERSIGHT  AND REPORTING RESPONSIBILITIES OF THE OFFICE. IF A REQUEST IS
DENIED, THE COMMISSIONER SHALL HAVE THE POWER TO ISSUE  A  SUBPOENA  FOR
WITNESSES AND THE PRODUCTION OF DOCUMENTS AND ANY OTHER DATA, IN WHATEV-
ER FORM, INCLUDING ELECTRONIC, THAT THE COMMISSIONER REASONABLY BELIEVES
IS RELEVANT. IF ANY PERSON TO WHOM A SUBPOENA IS ISSUED FAILS TO APPEAR,
OR  HAVING  APPEARED,  REFUSES  TO  GIVE  TESTIMONY  OR FAILS TO PRODUCE
EVIDENCE REQUIRED, THE COMMISSIONER MAY APPLY TO THE SUPERIOR  COURT  TO
ISSUE  AN  ORDER  TO COMPEL THE TESTIMONY AND PRODUCTION OF DOCUMENTS OF

S. 2642--A                          3

ANY SUCH WITNESSES. A FAILURE TO OBEY  THE  ORDER  MAY  BE  PUNISHED  AS
CONTEMPT.  ANY  PERSON  OR OFFICE OR CUSTODIAN OF RECORDS TO WHOM SUCH A
REQUEST OR SUBPOENA IS DIRECTED MAY SEEK INJUNCTIVE RELIEF IN THE  SUPE-
RIOR COURT TO DEFER A SUBPOENA ISSUED BY THE COMMISSIONER.
  8. THE OFFICE SHALL:
  (A)  EXAMINE, ON A SYSTEM-WIDE BASIS, THE ENTIRE SCOPE OF THE INTELLI-
GENCE AND OTHER OPERATIONS OF INTELLIGENCE  DATA  CENTERS  IN  NEW  YORK
STATE.
  (B) INVESTIGATE, EVALUATE, AND ANALYZE THE PARTICULAR PROCEDURES, BOTH
AS  WRITTEN  AND  IN  PRACTICE, EMPLOYED BY INTELLIGENCE DATA CENTERS IN
COLLECTING DATA, INCLUDING PERSONALLY IDENTIFIABLE INFORMATION,  AND  IN
PROTECTING THE PRIVACY AND SECURITY OF SUCH INFORMATION;
  (C) INVESTIGATE, EVALUATE, AND ANALYZE THE PARTICULAR PROCEDURES, BOTH
WRITTEN AND IN PRACTICE, EMPLOYED BY INTELLIGENCE DATA CENTERS TO ENSURE
THAT  THE  ACTIVITIES  OF  SUCH CENTERS DO NOT INFRINGE ON THE RIGHTS TO
FREEDOM OF ASSEMBLY,  ASSOCIATION,  AND  EXPRESSION  GUARANTEED  BY  THE
UNITED STATES CONSTITUTION AND THE NEW YORK STATE CONSTITUTION;
  (D)  INVESTIGATE,  EVALUATE,  AND  ANALYZE  THE IMPACT OF ANY MILITARY
INVOLVEMENT IN INTELLIGENCE DATA CENTER ACTIVITIES;
  (E) INVESTIGATE, EVALUATE, AND  ANALYZE  THE  IMPACT  OF  ANY  PRIVATE
SECTOR INVOLVEMENT IN INTELLIGENCE DATA CENTER ACTIVITIES ON THE PRIVACY
AND SECURITY OF PERSONALLY IDENTIFIABLE INFORMATION;
  (F)  INVESTIGATE,  EVALUATE,  AND  ANALYZE  THE  QUALITY,  TIMELINESS,
COMPLETENESS, ACCURACY AND  EFFICIENCY  OF  INTELLIGENCE  DATA  CENTERS'
RESPONSES TO INDIVIDUALS' REQUESTS;
  (G)  ISSUE SEMI-ANNUAL WRITTEN REPORTS, WHICH SHALL BE PUBLIC RECORDS,
AND SHALL BE FILED WITH THE LEGISLATURE, AND SUBMITTED TO THE  GOVERNOR,
THE CHAIRS OF THE ASSEMBLY WAYS AND MEANS AND SENATE FINANCE COMMITTEES,
THE  CHAIRS  OF THE SENATE AND ASSEMBLY JUDICIARY COMMITTEES, THE SENATE
VETERANS, HOMELAND SECURITY AND MILITARY AFFAIRS COMMITTEE,  THE  SENATE
CONSUMER  PROTECTION  COMMITTEE  AND  THE  ASSEMBLY CONSUMER AFFAIRS AND
PROTECTION  COMMITTEE  AND  THE  ASSEMBLY  ECONOMIC   DEVELOPMENT,   JOB
CREATION,  COMMERCE  AND  INDUSTRY  COMMITTEE. THE FIRST REPORT SHALL BE
FILED ON OR BEFORE JANUARY THIRTIETH, TWO THOUSAND SIXTEEN;
  (H) ASSIST AND COOPERATE WITH THE  MEMBERS  OF  THE  SEVERAL  RELEVANT
COMMITTEES,  AS  NOTED,  IN CONVENING AND PARTICIPATING IN ANNUAL PUBLIC
HEARINGS CONCERNING THE OPERATIONS OF INTELLIGENCE DATA CENTERS  IN  THE
STATE;
  (I) PROVIDE INDEPENDENT OVERSIGHT OF DATA AND PRIVACY PROTECTION FUNC-
TIONS AT INTELLIGENCE DATA CENTERS, WITH REGARD TO THE COLLECTION, MAIN-
TENANCE  AND  STORAGE, AND ANY DISCLOSURE, TRANSFER, OR DISSEMINATION OF
PERSONALLY IDENTIFIABLE INFORMATION OR INTELLIGENCE DATA;
  (J) ADVISE THE PUBLIC AND PUBLIC OFFICIALS IN ALL BRANCHES AND AT  ALL
LEVELS  OF  STATE GOVERNMENT ABOUT THE DATA AND PRIVACY PROTECTION OPER-
ATIONS OF THE INTELLIGENCE DATA CENTERS; AND
  (K) MAKE ANNUAL FINDINGS AND RECOMMENDATIONS CONCERNING THE OPERATIONS
OF INTELLIGENCE DATA  CENTERS  AND  SUBMIT  APPROPRIATE  LEGISLATION  TO
ADDRESS IDENTIFIED ISSUES.
  S  2.  The  executive  law is amended by adding a new section 225-b to
read as follows:
  S 225-B. PROHIBITION ON COLLECTING CERTAIN INFORMATION.   1. NO  STATE
OR  LOCAL  LAW  ENFORCEMENT  AGENCY,  PROSECUTORIAL OFFICE, OR POLICE OR
PEACE OFFICER SHALL COLLECT OR MAINTAIN INFORMATION ABOUT THE POLITICAL,
RELIGIOUS OR SOCIAL VIEWS, ASSOCIATIONS OR ACTIVITIES OF ANY INDIVIDUAL,
GROUP, ASSOCIATION, ORGANIZATION, CORPORATION, BUSINESS  OR  PARTNERSHIP
OR  OTHER ENTITY UNLESS SUCH INFORMATION DIRECTLY RELATES TO AN INVESTI-

S. 2642--A                          4

GATION OF CRIMINAL ACTIVITIES,  AND  THERE  ARE  REASONABLE  GROUNDS  TO
SUSPECT THE SUBJECT OF THE INFORMATION IS INVOLVED IN CRIMINAL CONDUCT.
  2.  ANY  INFORMATION  COLLECTED OR MAINTAINED UNDER SUBDIVISION ONE OF
THIS SECTION SHALL BE REFERRED TO  HEREINAFTER  AS  "PROTECTED  INFORMA-
TION".  NO  INTELLIGENCE  DATA CENTER, AS DEFINED IN SECTION TWO HUNDRED
THIRTY-TWO OF THIS CHAPTER, OR STATE OR LOCAL LAW ENFORCEMENT AGENCY  IN
RECEIPT  OF INFORMATION FROM AN INTELLIGENCE DATA CENTER, SHALL COLLECT,
MAINTAIN, OR DISSEMINATE SUCH INFORMATION EXCEPT IN ACCORDANCE WITH  THE
PROVISIONS OF THIS SECTION.
  (A) NO INFORMATION SHALL BE KNOWINGLY RECEIVED, MAINTAINED, OR DISSEM-
INATED  THAT  HAS  BEEN OBTAINED IN VIOLATION OF ANY APPLICABLE FEDERAL,
STATE, OR LOCAL LAW, ORDINANCE, OR REGULATION.
  (B) ALL PROTECTED INFORMATION SHALL BE EVALUATED FOR  THE  RELIABILITY
OF ITS SOURCE AND THE ACCURACY OF ITS CONTENT PRIOR TO BEING RECORDED IN
ANY INVESTIGATION FILE.
  (C)  PROTECTED  INFORMATION SHALL BE DISSEMINATED ONLY TO LAW ENFORCE-
MENT AGENCIES, CONTINGENT UPON REVIEW AND PRIOR WRITTEN AUTHORIZATION BY
THE HEAD OF THE ORIGINATING LAW ENFORCEMENT AGENCY OR INTELLIGENCE  DATA
CENTER.  A  RECORD OF ANY SUCH WRITTEN AUTHORIZATION SHALL BE MAINTAINED
FOR A MINIMUM OF FIVE YEARS.
  (D) ALL INVESTIGATIONS UNDERTAKEN ON THE BASIS OF ANY PROTECTED INFOR-
MATION SHALL FIRST BE AUTHORIZED IN WRITING BY THE HEAD OF THE  INVESTI-
GATING  LAW ENFORCEMENT AGENCY OR INTELLIGENCE DATA CENTER.  A RECORD OF
ANY SUCH WRITTEN AUTHORIZATION SHALL BE MAINTAINED IN THE  CORRESPONDING
INVESTIGATION FILE FOR A MINIMUM OF FIVE YEARS.
  (E)  ALL  INFORMATION  RECORDED  IN  ANY  INVESTIGATION  FILE SHALL BE
REVIEWED AT LEAST ONCE EVERY FIVE YEARS, AND ANY INFORMATION THAT IS NOT
RELIABLE, ACCURATE, RELEVANT, AND TIMELY, SHALL BE  DESTROYED,  PROVIDED
HOWEVER,  THAT ANY DOCUMENTS RELATED TO THE AUTHORIZATION FOR AND TERMI-
NATION OF INVESTIGATIONS BASED IN WHOLE OR IN PART ON PROTECTED INFORMA-
TION COLLECTED UNDER SUBDIVISION ONE OF THIS SECTION, AND  ANY  AUTHORI-
ZATION TO DISSEMINATE SUCH PROTECTED INFORMATION, SHALL BE RETAINED.
  S 3. This act shall take effect on the one hundred eightieth day after
it shall have become a law; provided, however, that effective immediate-
ly,  the  addition,  amendment  and/or  repeal of any rule or regulation
necessary for the implementation of this act on its  effective  date  is
authorized  and  directed  to  be  made  and completed on or before such
effective date.