Bill Text: FL S0210 | 2019 | Regular Session | Introduced


Bill Title: Searches of Cellular Phones and Other Electronic Devices

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced) 2019-01-10 - Referred to Criminal Justice; Judiciary; Rules [S0210 Detail]

Download: Florida-2019-S0210-Introduced.html
       Florida Senate - 2019                                     SB 210
       
       
        
       By Senator Brandes
       
       
       
       
       
       24-00393A-19                                           2019210__
    1                        A bill to be entitled                      
    2         An act relating to searches of cellular phones and
    3         other electronic devices; amending s. 934.01, F.S.;
    4         revising and providing legislative findings; amending
    5         s. 934.02, F.S.; redefining the term “oral
    6         communication”; defining the terms “microphone-enabled
    7         household device” and “portable electronic
    8         communication device”; amending s. 934.21, F.S.;
    9         revising the exceptions to conduct that constitutes
   10         unlawful access to stored communications; conforming a
   11         provision to changes made by the act; amending s.
   12         934.42, F.S.; defining the terms “mobile tracking
   13         device,” “real-time location tracking,” and
   14         “historical location data”; authorizing an
   15         investigative or law enforcement officer to apply to a
   16         judge of competent jurisdiction for a warrant, rather
   17         than an order, authorizing real-time location tracking
   18         or acquisition of historical location data; requiring
   19         an application for a warrant to include a statement of
   20         a reasonable period of time that the mobile tracking
   21         device may be used or the location data may be
   22         obtained in real time, not to exceed a specified
   23         limit; authorizing a court to grant extensions that do
   24         not individually exceed a specified limit, for good
   25         cause; deleting a provision requiring a certification
   26         to be included in the application; providing that the
   27         court, if it finds probable cause and finds the
   28         required statements in the application, must grant a
   29         warrant; specifying the warrant may authorize real
   30         time location tracking or acquisition of historical
   31         location data; providing the warrant may authorize the
   32         use of the mobile tracking device as specified;
   33         requiring the warrant to command the officer to
   34         complete any installation authorized by the warrant
   35         within a certain timeframe; providing requirements for
   36         the return of the warrant to the judge and service of
   37         a copy of the warrant on the person who was tracked or
   38         whose property was tracked; specifying how a warrant
   39         authorizing the acquisition of historical location
   40         data must be returned and served; authorizing a court,
   41         for good cause, to postpone the notice requirement for
   42         a specified time period; requiring that the standards
   43         established by Florida courts for the installation,
   44         use, or monitoring of mobile tracking devices and the
   45         acquisition of location data apply to the
   46         installation, use, or monitoring of any devices and
   47         the acquisition of location data as authorized;
   48         deleting the definition of “tracking device”;
   49         authorizing any investigative or law enforcement
   50         officer who is specially designated by certain persons
   51         and who makes specified determinations to engage in
   52         real-time location tracking if a warrant is later
   53         obtained as specified; providing requirements for
   54         engaging in real-time location tracking; specifying
   55         when real-time location tracking must terminate;
   56         providing an effective date.
   57          
   58  Be It Enacted by the Legislature of the State of Florida:
   59  
   60         Section 1. Section 934.01, Florida Statutes, is amended to
   61  read:
   62         934.01 Legislative findings.—On the basis of its own
   63  investigations and of published studies, the Legislature makes
   64  the following findings:
   65         (1) Wire communications are normally conducted through the
   66  use of facilities which form part of an intrastate network. The
   67  same facilities are used for interstate and intrastate
   68  communications.
   69         (2) In order to protect effectively the privacy of wire,
   70  and oral, and electronic communications, to protect the
   71  integrity of court and administrative proceedings, and to
   72  prevent the obstruction of intrastate commerce, it is necessary
   73  for the Legislature to define the circumstances and conditions
   74  under which the interception of wire, and oral, and electronic
   75  communications may be authorized and to prohibit any
   76  unauthorized interception of such communications and the use of
   77  the contents thereof in evidence in courts and administrative
   78  proceedings.
   79         (3) Organized criminals make extensive use of wire, and
   80  oral, and electronic communications in their criminal
   81  activities. The interception of such communications to obtain
   82  evidence of the commission of crimes or to prevent their
   83  commission is an indispensable aid to law enforcement and the
   84  administration of justice.
   85         (4) To safeguard the privacy of innocent persons, the
   86  interception of wire, or oral, or electronic communications when
   87  none of the parties to the communication has consented to the
   88  interception should be allowed only when authorized by a court
   89  of competent jurisdiction and should remain under the control
   90  and supervision of the authorizing court. Interception of wire,
   91  and oral, and electronic communications should further be
   92  limited to certain major types of offenses and specific
   93  categories of crime with assurance that the interception is
   94  justified and that the information obtained thereby will not be
   95  misused.
   96         (5) To safeguard the privacy of innocent persons, the
   97  Legislature recognizes that the subjective expectation of
   98  privacy in real-time cell-site location data, real-time precise
   99  global positioning system location data, and historical precise
  100  global positioning system location data which society is now
  101  prepared to accept is objectively reasonable. As such, the law
  102  enforcement collection of the precise location of a person,
  103  cellular phone, or portable electronic communication device
  104  without the consent of the person or owner of the cellular phone
  105  or portable electronic communication device should be allowed
  106  only when authorized by a warrant issued by a court of competent
  107  jurisdiction and should remain under the control and supervision
  108  of the authorizing court.
  109         (6) The Legislature recognizes that the use of portable
  110  electronic communication devices is growing at a rapidly
  111  increasing rate. These devices can store, and encourage the
  112  storing of, an almost limitless amount of personal and private
  113  information. Often linked to the Internet, these devices are
  114  commonly used to access personal and business information and
  115  databases in computers and servers that can be located anywhere
  116  in the world. The user of a portable electronic communication
  117  device has a reasonable and justifiable expectation of privacy
  118  in the information that these devices contain.
  119         (7) The Legislature recognizes that the use of household
  120  electronic devices, including microphone-enabled household
  121  devices, is growing at a rapidly increasing rate. These devices
  122  often contain microphones that listen for and respond to
  123  environmental cues. These household devices are generally
  124  connected to and communicate through the Internet, resulting in
  125  the storage of and accessibility to daily household information
  126  in a device itself or in a remote computing service. Persons
  127  should not have to choose between using household technological
  128  enhancements and conveniences or preserving the right to privacy
  129  in one’s home.
  130         Section 2. Subsection (2) of section 934.02, Florida
  131  Statutes, is amended, and subsections (27) and (28) are added to
  132  that section, to read:
  133         934.02 Definitions.—As used in this chapter:
  134         (2) “Oral communication” means any oral communication
  135  uttered by a person exhibiting an expectation that such
  136  communication is not subject to interception under circumstances
  137  justifying such expectation, including the use of a microphone
  138  enabled household device, and does not mean any public oral
  139  communication uttered at a public meeting or any electronic
  140  communication.
  141         (27) “Microphone-enabled household device” means a device,
  142  sensor, or other physical object within a residence:
  143         (a) Capable of connecting to the Internet, directly or
  144  indirectly, or to another connected device;
  145         (b) Capable of creating, receiving, accessing, processing,
  146  or storing electronic data or communications;
  147         (c) Which communicates with, by any means, another entity
  148  or individual; and
  149         (d) Which contains a microphone designed to listen for and
  150  respond to environmental cues.
  151         (28) “Portable electronic communication device” means an
  152  object capable of being easily transported or conveyed by a
  153  person which is capable of creating, receiving, accessing,
  154  processing, or storing electronic data or communications and
  155  which communicates with, by any means, another device, entity,
  156  or individual.
  157         Section 3. Section 934.21, Florida Statutes, is amended to
  158  read:
  159         934.21 Unlawful access to stored communications;
  160  penalties.—
  161         (1) Except as provided in subsection (3), whoever:
  162         (a) Intentionally accesses without authorization a facility
  163  through which an electronic communication service is provided,
  164  or
  165         (b) Intentionally exceeds an authorization to access such
  166  facility,
  167  
  168  and thereby obtains, alters, or prevents authorized access to a
  169  wire or electronic communication while it is in electronic
  170  storage in such system shall be punished as provided in
  171  subsection (2).
  172         (2) The punishment for an offense under subsection (1) is
  173  as follows:
  174         (a) If the offense is committed for purposes of commercial
  175  advantage, malicious destruction or damage, or private
  176  commercial gain, the person is:
  177         1. In the case of a first offense under this subsection,
  178  commits guilty of a misdemeanor of the first degree, punishable
  179  as provided in s. 775.082, s. 775.083, or s. 934.41.
  180         2. In the case of any subsequent offense under this
  181  subsection, commits guilty of a felony of the third degree,
  182  punishable as provided in s. 775.082, s. 775.083, s. 775.084, or
  183  s. 934.41.
  184         (b) In any other case, the person commits is guilty of a
  185  misdemeanor of the second degree, punishable as provided in s.
  186  775.082 or s. 775.083.
  187         (3) Subsection (1) does not apply with respect to conduct
  188  authorized:
  189         (a) By the person or entity providing a wire, oral, or
  190  electronic communications service, including through cellular
  191  phones, portable electronic communication devices, or
  192  microphone-enabled household devices;
  193         (b) By a user of a wire, oral, or electronic communications
  194  service, including through cellular phones, portable electronic
  195  communication devices, or microphone-enabled household devices,
  196  with respect to a communication of or intended for that user; or
  197         (c) In s. 934.09 or, s. 934.23;, or s. 934.24
  198         (d) In chapter 933; or
  199         (e) For accessing for a legitimate business purpose
  200  information that is not personally identifiable or that has been
  201  collected in a way that prevents identification of the user of
  202  the device.
  203         Section 4. Section 934.42, Florida Statutes, is amended to
  204  read:
  205         934.42 Mobile tracking device and location tracking
  206  authorization.—
  207         (1) As used in this section, the term:
  208         (a) “Mobile tracking device” means an electronic or
  209  mechanical device that permits the tracking of the movement of a
  210  person or an object.
  211         (b) “Real-time location tracking” means:
  212         1. Installation and use of a mobile tracking device on the
  213  object to be tracked;
  214         2. Acquisition of real-time cell-site location data; or
  215         3. Acquisition of real-time precise global positioning
  216  system location data.
  217         (c) “Historical location data” means historical precise
  218  global positioning system location data in the possession of a
  219  provider.
  220         (2)(1) An investigative or law enforcement officer may make
  221  application to a judge of competent jurisdiction for a warrant
  222  an order authorizing or approving real-time location tracking or
  223  the acquisition of historical location data in the possession of
  224  the provider the installation and use of a mobile tracking
  225  device.
  226         (3)(2) An application under subsection (2) (1) of this
  227  section must include:
  228         (a) A statement of the identity of the applicant and the
  229  identity of the law enforcement agency conducting the
  230  investigation.
  231         (b) A statement setting forth a reasonable period of time
  232  that the mobile tracking device may be used or the location data
  233  may be obtained in real time, not to exceed 45 days from the
  234  date the warrant is issued. The court may, for good cause, grant
  235  one or more extensions for a reasonable period of time, not to
  236  exceed 45 days each. When seeking historical location data, the
  237  applicant must specify a date range for the data sought
  238  certification by the applicant that the information likely to be
  239  obtained is relevant to an ongoing criminal investigation being
  240  conducted by the investigating agency.
  241         (c) A statement of the offense to which the information
  242  likely to be obtained relates.
  243         (d) A statement as to whether it may be necessary to use
  244  and monitor the mobile tracking device outside the jurisdiction
  245  of the court from which authorization is being sought.
  246         (4)(3) Upon application made as provided under subsection
  247  (3) (2), the court, if it finds probable cause that the
  248  certification and finds that the statements required by
  249  subsection (3) (2) have been made in the application, must grant
  250  a warrant shall enter an ex parte order authorizing real-time
  251  location tracking the installation and use of a mobile tracking
  252  device or the acquisition of historical location data. Such
  253  warrant order may authorize the use of the mobile tracking
  254  device within the jurisdiction of the court and outside that
  255  jurisdiction but within the State of Florida if the mobile
  256  tracking device is installed within the jurisdiction of the
  257  court. The warrant must command the officer to complete any
  258  installation authorized by the warrant within a specified period
  259  of time not to exceed 10 calendar days.
  260         (5)(4) A court may not require greater specificity or
  261  additional information beyond that which is required by law and
  262  this section as a requisite for issuing a warrant an order.
  263         (6) Within 10 days after the time period specified in
  264  paragraph (3)(b) has ended, the officer executing a warrant must
  265  return the warrant to the issuing judge. When the warrant is
  266  authorizing the acquisition of historical location data, the
  267  officer executing the warrant must return the warrant to the
  268  issuing judge within 10 days after receipt of the records. The
  269  officer may do so by reliable electronic means.
  270         (7) Within 10 days after the time period specified in
  271  paragraph (3)(b) has ended, the officer executing a warrant must
  272  serve a copy of the warrant on the person who, or whose
  273  property, was tracked. When the warrant is authorizing the
  274  acquisition of historical location data, the officer executing
  275  the warrant must serve a copy of the warrant on the person whose
  276  data was obtained within 10 days after receipt of the records.
  277  Service may be accomplished by delivering a copy to the person
  278  who, or whose property, was tracked or data obtained or by
  279  leaving a copy at the person’s residence or usual place of abode
  280  with an individual of suitable age and discretion who resides at
  281  that location and by mailing a copy to the person’s last known
  282  address. Upon a showing of good cause to a court of competent
  283  jurisdiction, the court may grant one or more postponements of
  284  this notice for a period of 90 days each.
  285         (8)(5) The standards established by Florida courts and the
  286  United States Supreme Court for the installation, use, or and
  287  monitoring of mobile tracking devices and the acquisition of
  288  location data shall apply to the installation, use, or
  289  monitoring and use of any device and the acquisition of location
  290  data as authorized by this section.
  291         (6) As used in this section, a “tracking device” means an
  292  electronic or mechanical device which permits the tracking of
  293  the movement of a person or object.
  294         (9)(a) Notwithstanding any other provision of this chapter,
  295  any investigative or law enforcement officer specially
  296  designated by the Governor, the Attorney General, the statewide
  297  prosecutor, or a state attorney acting pursuant to this chapter
  298  who reasonably determines that:
  299         1. An emergency exists which:
  300         a. Involves immediate danger of death or serious physical
  301  injury to any person or the danger of escape of a prisoner; and
  302         b. Requires real-time location tracking before a warrant
  303  authorizing such tracking can, with due diligence, be obtained;
  304  and
  305         2. There are grounds upon which a warrant could be issued
  306  under this chapter to authorize such tracking,
  307  
  308  may engage in real-time location tracking if, within 48 hours
  309  after the tracking has occurred or begins to occur, a warrant
  310  approving the tracking is issued in accordance with this
  311  section.
  312         (b) In the absence of an authorizing warrant, such tracking
  313  must immediately terminate when the information sought is
  314  obtained, when the application for the warrant is denied, or
  315  when 48 hours have lapsed since the tracking began, whichever is
  316  earlier.
  317         Section 5. This act shall take effect July 1, 2019.

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