S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2828
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 23, 2017
                                ___________
 
 Introduced  by  M. of A. RYAN -- read once and referred 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:

   Section 1. The article heading of article 705 of the  criminal  proce-
 dure  law,  as  added  by chapter 744 of the laws of 1988, is amended to
 read as follows:
                    PEN REGISTERS [AND], TRAP AND TRACE
                   DEVICES AND MOBILE PHONE SURVEILLANCE
                            DEVICES OR SYSTEMS
   § 2. Section 705.00 of the criminal procedure law is amended by adding
 a new subdivision 7 to read as follows:
   7. "MOBILE PHONE SURVEILLANCE DEVICE OR SYSTEM" SHALL MEAN  TECHNOLOGY
 THAT  IDENTIFIES,  TRACKS,  OR  LOCATES CELLULAR DEVICES BY FORCING EACH
 COMPATIBLE CELLULAR DEVICE IN  A  GIVEN  AREA  TO  DISCONNECT  FROM  ITS
 SERVICE  PROVIDER  CELL  SITE  AND  ESTABLISH  A NEW CONNECTION WITH THE
 DEVICE BY MIMICKING A WIRELESS CARRIER CELL TOWER.   DURING THE  PROCESS
 OF  FORCING  CONNECTIONS FROM ALL COMPATIBLE CELLULAR DEVICES IN A GIVEN
 AREA, THE MOBILE PHONE SURVEILLANCE DEVICE OR SYSTEM OPERATOR DETERMINES
 WHICH DEVICE IS A DESIRED SURVEILLANCE TARGET BY DOWNLOADING THE IDENTI-
 FYING DATA FROM EACH OF THE CELLULAR DEVICES  CONNECTED  TO  THE  MOBILE
 PHONE SURVEILLANCE DEVICE OR SYSTEM.  IDENTIFYING DATA IS TRANSMITTED TO
 THE MOBILE PHONE SURVEILLANCE DEVICE OR SYSTEM THROUGH RADIO WAVES.
   § 3. Section 705.05 of the criminal procedure law, as added by chapter
 744 of the laws of 1988, is amended to read as follows:
 §  705.05  Pen  register [and], trap and trace AND MOBILE PHONE SURVEIL-
         LANCE authorizations; in general.
   Under circumstances prescribed in this article, a justice may issue an
 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.
              

                                                            LBD08093-01-7

 A. 2828                             2
 
 device,  OR  A  MOBILE PHONE SURVEILLANCE DEVICE OR SYSTEM upon ex parte
 application of an applicant who is authorized  by  law  to  investigate,
 prosecute  or  participate  in  the prosecution of the designated crimes
 which are the subject of the application.
   § 4. Section 705.10 of the criminal procedure law, as added by chapter
 744 of the laws of 1988, is amended to read as follows:
 §  705.10  Orders authorizing the use of a pen register [or], a trap and
              trace device, OR A  MOBILE  PHONE  SURVEILLANCE  DEVICE  OR
              SYSTEM; when issuable.
   An  order authorizing the use of a pen register [or], a trap and trace
 device, OR A MOBILE PHONE SURVEILLANCE DEVICE OR SYSTEM may issue only:
   1. Upon an appropriate application made in conformity with this  arti-
 cle; and
   2. Upon a determination that an application sets forth specific, arti-
 culable  facts,  warranting  the applicant's reasonable suspicion that a
 designated crime has been, is being, or is about  to  be  committed  and
 demonstrating that the information likely to be obtained by use of a pen
 register  [or],  trap  and  trace  device,  OR MOBILE PHONE SURVEILLANCE
 DEVICE OR SYSTEM is or will be relevant to an ongoing criminal  investi-
 gation of such designated crime.
   § 5. Section 705.15 of the criminal procedure law, as added by chapter
 744 of the laws of 1988, is amended to read as follows:
 §  705.15 Application for an order authorizing the use of a pen register
              [or], a trap and trace device, OR A MOBILE  PHONE  SURVEIL-
              LANCE DEVICE OR SYSTEM.
   1.  An  ex  parte application for an order or an extension of an order
 authorizing the use of a pen register [or], a trap and trace device,  OR
 A  MOBILE  SURVEILLANCE  DEVICE  OR  SYSTEM must be made to a justice in
 writing, and must be subscribed and sworn to by the applicant.
   2. The application must contain:
   (a) The identity of the applicant and the identity of the law enforce-
 ment agency conducting the investigation; and
   (b) A statement of facts and circumstances sufficient to  justify  the
 applicant's  belief  that an order authorizing the use of a pen register
 [or], a trap and trace device, OR A MOBILE PHONE SURVEILLANCE DEVICE  OR
 SYSTEM should be issued, including (i) a statement of the specific facts
 on  the basis of which the applicant reasonably suspects that the desig-
 nated crime has been, is being, or is about to be committed  and  demon-
 strating  that  the  information  likely  to be obtained by use of a pen
 register [or], a trap and trace device, OR A MOBILE  PHONE  SURVEILLANCE
 DEVICE  OR SYSTEM is or will be relevant to an ongoing criminal investi-
 gation of such designated offense, (ii) the identity, if known,  of  the
 person  to  whom is leased or in whose name is listed the telephone line
 to which the pen register or trap and trace device is  to  be  attached,
 (iii)  the  identity,  if known, of the person who is the subject of the
 criminal investigation, (iv) the number  and,  if  known,  the  physical
 location  of  the  telephone  line to which the pen register or trap and
 trace device is to be attached and, in the case  of  a  trap  and  trace
 device, the geographic limits of the trap and trace order, (V) A PARTIC-
 ULAR DESCRIPTION OF THE NATURE AND LOCATION OF THE FACILITIES FROM WHICH
 OR  THE PLACE WHERE THE COMMUNICATION IS TO BE INTERCEPTED AND A PARTIC-
 ULAR DESCRIPTION OF THE TYPE OF THE COMMUNICATIONS SOUGHT TO  BE  INTER-
 CEPTED  BY  THE  MOBILE  PHONE  SURVEILLANCE  DEVICE  OR  SYSTEM AND THE
 GEOGRAPHIC LIMITS OF THE ORDER; and [(v)] (VI) a statement of the desig-
 nated crime or crimes to which the information likely to be obtained  by

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 the use of the pen register [or], trap and trace device, OR MOBILE PHONE
 SURVEILLANCE DEVICE OR SYSTEM relates; and
   (c)  A statement of the period of time for which the authorization for
 the use of a pen register [or], a trap and trace  device,  OR  A  MOBILE
 PHONE SURVEILLANCE DEVICE OR SYSTEM is required; and
   (d)  A  statement  of  the facts concerning all previous applications,
 known to the applicant, for an order authorizing the use of a pen regis-
 ter [or], a trap and trace device, OR A MOBILE PHONE SURVEILLANCE DEVICE
 OR SYSTEM involving any of the same persons or facilities  specified  in
 the application, and the action taken by the justice on each such appli-
 cation.
   3. Allegations of fact in the application may be based either upon the
 personal  knowledge  of the applicant or upon information and belief. If
 the applicant personally knows the facts alleged, it must be so  stated.
 If  the  facts stated in the application are derived in whole or in part
 from the statements of persons other than the applicant, the sources  of
 such facts must be either disclosed or described.
   § 6. Section 705.20 of the criminal procedure law, as added by chapter
 744 of the laws of 1988, is amended to read as follows:
 § 705.20 Orders  authorizing  the use of a pen register [or], a trap and
            trace device,  OR  A  MOBILE  PHONE  SURVEILLANCE  DEVICE  OR
            SYSTEM; determination of application.
   1.  If  the  justice determines on the basis of the facts submitted by
 the applicant that grounds exist for the issue of an  order  authorizing
 the  use  of  a  pen register [or], a trap and trace device, OR A MOBILE
 PHONE SURVEILLANCE DEVICE OR SYSTEM pursuant to section 705.10  of  this
 article,  the  justice  shall  grant  the application and issue an order
 authorizing the use of a pen register [or], a trap and trace device,  OR
 A  MOBILE PHONE SURVEILLANCE DEVICE OR SYSTEM, in accordance with subdi-
 vision three of this section.
   2. If the application does not conform to section 705.15 of this arti-
 cle, or if the justice is not satisfied that grounds exist for the issu-
 ance of an order authorizing the use of a pen register [or], a trap  and
 trace  device,  OR  A  MOBILE  PHONE  SURVEILLANCE DEVICE OR SYSTEM, the
 application must be denied.
   3. An order issued under this section must contain:
   (a) the name of the applicant, date of issuance, and the  subscription
 and title of the issuing justice; and
   (b)  the  identity,  if  known,  of the person to whom is leased or in
 whose name is listed the telephone line, OR MOBILE PHONE LINE  to  which
 the  pen  register [or], trap and trace device, OR MOBILE PHONE SURVEIL-
 LANCE DEVICE OR SYSTEM is to be attached; and
   (c) the identity, if known, of the person who is the  subject  of  the
 criminal investigation; and
   (d)  the  number and, if known, the physical location of the telephone
 line to which the pen register  or  trap  and  trace  device  is  to  be
 attached  and,  in  the  case of a trap and trace device OR MOBILE PHONE
 SURVEILLANCE DEVICE, the geographic limits of  the  trap  and  trace  OR
 MOBILE PHONE SURVEILLANCE order; and
   (e)  a statement of the designated crime or crimes to which the infor-
 mation likely to be obtained by the pen register [or],  trap  and  trace
 device, OR MOBILE PHONE SURVEILLANCE DEVICE OR SYSTEM relates.
   4.  An  order issued under this section shall direct, upon the request
 of the applicant, the furnishing of information, facilities, and techni-
 cal assistance necessary to accomplish the installation OR  USE  of  the

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 pen  register  [or], trap and trace device, OR MOBILE PHONE SURVEILLANCE
 DEVICE OR SYSTEM under section 705.25 of this article.
   § 7. Section 705.25 of the criminal procedure law, as added by chapter
 744 of the laws of 1988, is amended to read as follows:
 § 705.25 Pen  register  [or],  trap  and  trace  device, OR MOBILE PHONE
            SURVEILLANCE DEVICE OR SYSTEM orders; time period and  exten-
            sions.
   1. An order issued under this section shall authorize the installation
 and use of a pen register or a trap and trace device for a period not to
 exceed sixty days.
   2. Extensions of such an order may be granted, but only upon an appli-
 cation  for  an  order under section 705.05 of this article and upon the
 judicial finding required by subdivision one of section 705.10  of  this
 article.    The  period of extension shall be for a period not to exceed
 sixty days.
   3. NO MOBILE PHONE SURVEILLANCE ORDER MAY  AUTHORIZE  OR  APPROVE  THE
 INTERCEPTION  OF  ANY COMMUNICATION FOR ANY PERIOD LONGER THAN IS NECES-
 SARY TO ACHIEVE THE OBJECTIVE OF THE  AUTHORIZATION,  OR  IN  ANY  EVENT
 LONGER  THAN THIRTY DAYS. SUCH THIRTY DAY PERIOD SHALL BEGIN ON THE DATE
 DESIGNATED IN THE ORDER AS THE EFFECTIVE DATE.  EXTENSIONS  OF  SUCH  AN
 ORDER  MAY  BE  GRANTED, BUT ONLY UPON AN APPLICATION FOR AN ORDER UNDER
 SECTION 705.05 OF THIS ARTICLE AND UPON THE JUDICIAL FINDING REQUIRED BY
 SUBDIVISION ONE OF SECTION 705.10 OF THIS ARTICLE. THE PERIOD OF  EXTEN-
 SION SHALL BE FOR A PERIOD NOT TO EXCEED THIRTY DAYS.
   § 8. Section 705.30 of the criminal procedure law, as added by chapter
 744 of the laws of 1988, is amended to read as follows:
 § 705.30 Nondisclosure  of  existence  of  pen register [or], a trap and
            trace device,  OR  A  MOBILE  PHONE  SURVEILLANCE  DEVICE  OR
            SYSTEM.
   An  order  authorizing  or approving the installation and use of a pen
 register [or], a trap and trace device, OR A MOBILE  PHONE  SURVEILLANCE
 DEVICE OR SYSTEM shall direct that:
   1. the order be sealed until otherwise ordered by the court; and
   2.  the person owning or leasing the line to which the pen register or
 a trap and trace device is attached, THE SERVICE PROVIDER OF THE  MOBILE
 PHONE TO WHICH THE MOBILE PHONE SURVEILLANCE DEVICE OR SYSTEM IS IDENTI-
 FYING,  TRACKING  OR  LOCATING,  or who has been ordered by the court to
 provide assistance to the applicant, not disclose the existence  of  the
 pen  register  [or], trap and trace device, OR MOBILE PHONE SURVEILLANCE
 DEVICE OR SYSTEM or the existence of the  investigation  to  the  listed
 subscriber, or to any other person, unless or until otherwise ordered by
 the court.
   § 9. Subdivision 1 of section 700.05 of the criminal procedure law, as
 amended  by  chapter  744  of  the  laws  of 1988, is amended to read as
 follows:
   1. "Eavesdropping" means  "wiretapping",  "mechanical  overhearing  of
 conversation," or the "intercepting or accessing of an electronic commu-
 nication",  as  those  terms  are defined in section 250.00 of the penal
 law, but does not include the use of a pen register [or], trap and trace
 device, OR A MOBILE PHONE SURVEILLANCE DEVICE OR SYSTEM when  authorized
 pursuant to article 705 of this chapter.
   §  10.  This act shall take effect on the ninetieth day after it shall
 have become a law.