Bill Text: FL S0470 | 2020 | Regular Session | Comm Sub
Bill Title: Searches of Cellular Phones and Other Electronic Devices
Spectrum:
Status: (Failed) 2020-03-14 - Died in Judiciary [S0470 Detail]
Download: Florida-2020-S0470-Comm_Sub.html
Florida Senate - 2020 CS for SB 470
By the Committee on Criminal Justice; and Senators Brandes and
Bracy
591-01354-20 2020470c1
1 A bill to be entitled
2 An act relating to searches of cellular phones and
3 other electronic devices; amending s. 933.02, F.S.;
4 expanding the grounds for issuance of a search warrant
5 to include content held within a cellular phone,
6 portable electronic communication device, or
7 microphone-enabled household device when such content
8 constitutes evidence relevant to proving that a felony
9 has been committed; amending s. 933.04, F.S.; adopting
10 the constitutional protection against unreasonable
11 interception of private communications by any means
12 for purposes of obtaining a search warrant; amending
13 s. 934.01, F.S.; revising and providing legislative
14 findings; amending s. 934.02, F.S.; redefining the
15 terms “oral communication” and “electronic
16 communication”; defining the terms “microphone-enabled
17 household device” and “portable electronic
18 communication device”; amending s. 934.03, F.S.;
19 authorizing specified persons to provide information,
20 facilities, or technical assistance to a person
21 authorized by law to intercept wire, oral, or
22 electronic communications if such person has been
23 provided with a search warrant issued by a court of
24 competent jurisdiction; prohibiting specified persons
25 from disclosing the existence of any interception of a
26 wire, oral, or electronic communication with respect
27 to which the person has been served with a search
28 warrant, rather than a court order; amending s.
29 934.06, F.S.; prohibiting the use of certain
30 communication content in any trial, hearing or other
31 proceeding which was obtained without a specified
32 warrant; providing an exception; amending s. 934.07,
33 F.S.; authorizing a judge to issue a search warrant,
34 rather than grant a court order, in conformity with
35 specified provisions; authorizing the Department of
36 Law Enforcement to request a law enforcement agency
37 that provided certain information to join the
38 department in seeking a new search warrant; amending
39 s. 934.09, F.S.; requiring that each application for a
40 search warrant, rather than an order, authorizing or
41 approving the interception of wire, oral, or
42 electronic communications be made in writing and state
43 the applicant’s authority; authorizing a judge to
44 authorize a search warrant ex parte, rather than an ex
45 parte order, based on the application under certain
46 circumstances; specifying requirements for search
47 warrants, rather than orders, issued under certain
48 circumstances; authorizing an aggrieved person to move
49 to suppress the contents of certain wire, oral, or
50 electronic communications before, as well as during, a
51 trial, hearing, or proceeding; providing for
52 inadmissibility of certain evidence if a certain
53 motion is granted; authorizing a judge of competent
54 jurisdiction to authorize interception of wire, oral,
55 or electronic communications within this state under
56 specified circumstances; amending s. 934.10, F.S.;
57 providing that a good faith reliance on a search
58 warrant, rather than a court order, subpoena, or
59 legislative authorization, issued under certain
60 provisions constitutes a complete defense against
61 specified actions; amending s. 934.21, F.S.; revising
62 the exceptions to conduct that constitutes unlawful
63 access to stored communications; conforming a
64 provision to changes made by the act; amending s.
65 934.42, F.S.; defining the terms “mobile tracking
66 device,” “real-time location tracking,” and
67 “historical location data”; authorizing an
68 investigative or law enforcement officer to apply to a
69 judge of competent jurisdiction for a search warrant,
70 rather than an order, authorizing real-time location
71 tracking or acquisition of historical location data;
72 requiring an application for a search warrant to
73 include a statement setting forth a reasonable period
74 of time the mobile tracking device may be used or the
75 location data may be obtained in real time, not to
76 exceed a specified limit; authorizing a court to grant
77 extensions, for good cause, that do not individually
78 exceed a specified limit; requiring an applicant
79 seeking historical location data to specify a date
80 range for the data sought; deleting a provision
81 requiring a certification to be included in the
82 application; requiring the court, if it finds probable
83 cause and that the application contains the required
84 statements, to grant a search warrant; specifying that
85 the search warrant may authorize real-time location
86 tracking or acquisition of historical location data;
87 providing that the search warrant may authorize the
88 tracking as specified; requiring the search warrant to
89 command the investigative or law enforcement officer
90 to complete any initiation of the location tracking or
91 execution of the search warrant for historical
92 location data authorized by the search warrant within
93 a certain timeframe; providing requirements for the
94 return of the search warrant to the judge and for
95 service of a copy of the search warrant on the person
96 who was tracked or whose property was tracked;
97 providing requirements for returning and serving a
98 search warrant authorizing the acquisition of
99 historical location data; authorizing a court, for
100 good cause, to postpone the notice requirement for a
101 specified time period; requiring that the standards
102 established by Florida courts for the installation,
103 use, or monitoring of mobile tracking devices and the
104 acquisition of location data apply to the
105 installation, use, or monitoring of any devices and
106 the acquisition of location data as authorized by
107 certain provisions; deleting the definition of
108 “tracking device”; authorizing any investigative or
109 law enforcement officer who is specially designated by
110 certain persons and who makes specified determinations
111 to engage in real-time location tracking if a search
112 warrant is obtained, as specified, after the tracking
113 has occurred or begins to occur; providing
114 requirements for engaging in real-time location
115 tracking; specifying when real-time location tracking
116 must terminate; reenacting s. 934.22(2)(b), F.S.,
117 relating to voluntary disclosure of customer
118 communications or records, to incorporate the
119 amendments made to ss. 934.03 and 934.07, F.S., in
120 references thereto; reenacting s. 934.27(1) and (4),
121 F.S., relating to relief, damages, and defenses for
122 certain civil actions, to incorporate the amendments
123 made to ss. 934.09 and 934.21, F.S., in references
124 thereto; reenacting ss. 934.23(6), 934.24(6) and (7),
125 934.25(5), and 934.28, F.S., relating to required
126 disclosures of customer communications or records, a
127 subscriber or customer filing a motion for certain
128 relief and customer notification, delayed notice, and
129 the exclusivity of remedies and sanctions for certain
130 violations, respectively, to incorporate the amendment
131 made to s. 934.21, F.S., in references thereto;
132 providing an effective date.
133
134 Be It Enacted by the Legislature of the State of Florida:
135
136 Section 1. Section 933.02, Florida Statutes, is amended to
137 read:
138 933.02 Grounds for issuance of search warrant.—Upon proper
139 affidavits being made, a search warrant may be issued under the
140 provisions of this chapter upon any of the following grounds:
141 (1) When the property shall have been stolen or embezzled
142 in violation of law.;
143 (2) When any property shall have been used:
144 (a) As a means to commit any crime;
145 (b) In connection with gambling, gambling implements and
146 appliances; or
147 (c) In violation of s. 847.011 or other laws in reference
148 to obscene prints and literature.;
149 (3) When any property, or when content held within a
150 cellular phone, a portable electronic communication device as
151 defined in s. 934.02, or a microphone-enabled household device
152 as defined in s. 934.02, constitutes evidence relevant to
153 proving that a felony has been committed.;
154 (4) When any property is being held or possessed:
155 (a) In violation of any of the laws prohibiting the
156 manufacture, sale, and transportation of intoxicating liquors;
157 (b) In violation of the fish and game laws;
158 (c) In violation of the laws relative to food and drug; or
159 (d) In violation of the laws relative to citrus disease
160 pursuant to s. 581.184.; or
161 (5) When the laws in relation to cruelty to animals, as
162 provided in chapter 828, have been or are violated in any
163 particular building or place.
164
165 This section also applies to any papers or documents used as a
166 means of or in aid of the commission of any offense against the
167 laws of the state.
168 Section 2. Section 933.04, Florida Statutes, is amended to
169 read:
170 933.04 Affidavits.—The right of the people to be secure in
171 their persons, houses, papers and effects against unreasonable
172 seizures and searches and against the unreasonable interception
173 of private communications by any means shall not be violated and
174 no search warrant shall be issued except upon probable cause,
175 supported by oath or affirmation particularly describing the
176 place to be searched and the person and thing to be seized.
177 Section 3. Section 934.01, Florida Statutes, is amended to
178 read:
179 934.01 Legislative findings.—On the basis of its own
180 investigations and of published studies, the Legislature makes
181 the following findings:
182 (1) Wire communications are normally conducted through the
183 use of facilities which form part of an intrastate network. The
184 same facilities are used for interstate and intrastate
185 communications.
186 (2) In order to protect effectively the privacy of wire,
187 and oral, and electronic communications, to protect the
188 integrity of court and administrative proceedings, and to
189 prevent the obstruction of intrastate commerce, it is necessary
190 for the Legislature to define the circumstances and conditions
191 under which the interception of wire, and oral, and electronic
192 communications may be authorized and to prohibit any
193 unauthorized interception of such communications and the use of
194 the contents thereof in evidence in courts and administrative
195 proceedings.
196 (3) Organized criminals make extensive use of wire, and
197 oral, and electronic communications in their criminal
198 activities. The interception of such communications to obtain
199 evidence of the commission of crimes or to prevent their
200 commission is an indispensable aid to law enforcement and the
201 administration of justice.
202 (4) To safeguard the privacy of innocent persons, the
203 interception of wire, or oral, or electronic communications when
204 none of the parties to the communication has consented to the
205 interception should be allowed only when authorized by a court
206 of competent jurisdiction and should remain under the control
207 and supervision of the authorizing court. Interception of wire,
208 and oral, and electronic communications should further be
209 limited to certain major types of offenses and specific
210 categories of crime with assurance that the interception is
211 justified and that the information obtained thereby will not be
212 misused.
213 (5) To safeguard the privacy of innocent persons, the
214 Legislature recognizes the subjective expectation of privacy in
215 real-time cell-site location data, real-time precise global
216 positioning system location data, and historical precise global
217 positioning system location data which society is now prepared
218 to accept is objectively reasonable. As such, the law
219 enforcement collection of the precise location of a person,
220 cellular phone, or portable electronic communication device
221 without the consent of the person or owner of the cellular phone
222 or portable electronic communication device should be allowed
223 only when authorized by a search warrant issued by a court of
224 competent jurisdiction and should remain under the control and
225 supervision of the authorizing court.
226 (6) The Legislature recognizes the use of portable
227 electronic communication devices is growing at a rapidly
228 increasing rate. These devices can store, and encourage the
229 storing of, an almost limitless amount of personal and private
230 information. Often linked to the Internet, these devices are
231 commonly used to access personal and business information and
232 databases in computers and servers that can be located anywhere
233 in the world. The user of a portable electronic communication
234 device has a reasonable and justifiable expectation of privacy
235 in the information that these devices contain.
236 (7) The Legislature recognizes the use of household
237 electronic devices, including microphone-enabled household
238 devices, is growing rapidly. These devices often contain
239 microphones that listen for and respond to environmental cues.
240 These household devices are generally connected to and
241 communicate through the Internet, resulting in the storage of
242 and accessibility to daily household information in the device
243 itself or in a remote computing service. Persons should not have
244 to choose between using household technological enhancements and
245 conveniences or preserving the right to privacy in their own
246 homes.
247 Section 4. Subsections (2) and (12) of section 934.02,
248 Florida Statutes, are amended, and subsections (27) and (28) are
249 added to that section, to read:
250 934.02 Definitions.—As used in this chapter:
251 (2) “Oral communication” means any oral communication
252 uttered by a person exhibiting an expectation that such
253 communication is not subject to interception under circumstances
254 justifying such expectation, including the use of a microphone
255 enabled household device, and does not mean any public oral
256 communication uttered at a public meeting or any electronic
257 communication.
258 (12) “Electronic communication” means any transfer of
259 signs, signals, writing, images, sounds, data, or intelligence
260 of any nature transmitted in whole or in part by a wire, radio,
261 communication tower, satellite, electromagnetic,
262 photoelectronic, or photooptical system that affects intrastate,
263 interstate, or foreign commerce, but does not include:
264 (a) Any wire or oral communication;
265 (b) Any communication made through a tone-only paging
266 device;
267 (c) Any communication from an electronic or mechanical
268 device which permits the tracking of the movement of a person or
269 an object; or
270 (c)(d) Electronic funds transfer information stored by a
271 financial institution in a communications system used for the
272 electronic storage and transfer of funds.
273 (27) “Microphone-enabled household device” means a device,
274 sensor, or other physical object within a residence which:
275 (a) Is capable of connecting to the Internet, directly or
276 indirectly, or to another connected device;
277 (b) Is capable of creating, receiving, accessing,
278 processing, or storing electronic data or communications;
279 (c) Communicates with, by any means, another entity or
280 individual; and
281 (d) Contains a microphone designed to listen for and
282 respond to environmental cues.
283 (28) “Portable electronic communication device” means an
284 object that may be easily transported or conveyed by a person;
285 is capable of creating, receiving, accessing, processing, or
286 storing electronic data or communications; and communicates
287 with, by any means, another device, entity, or individual.
288 Section 5. Subsection (2) of section 934.03, Florida
289 Statutes, is amended to read:
290 934.03 Interception and disclosure of wire, oral, or
291 electronic communications prohibited.—
292 (2)(a)1. It is lawful under this section and ss. 934.04
293 934.09 for an operator of a switchboard, or an officer,
294 employee, or agent of a provider of wire or electronic
295 communication service whose facilities are used in the
296 transmission of a wire or electronic communication, to
297 intercept, disclose, or use that communication in the normal
298 course of his or her employment while engaged in any activity
299 which is a necessary incident to the rendition of his or her
300 service or to the protection of the rights or property of the
301 provider of that service, except that a provider of wire
302 communication service to the public shall not utilize service
303 observing or random monitoring except for mechanical or service
304 quality control checks.
305 2. Notwithstanding any other law, a provider of wire, oral,
306 or electronic communication service, or an officer, employee, or
307 agent thereof, or landlord, custodian, or other person, may
308 provide information, facilities, or technical assistance to a
309 person authorized by law to intercept wire, oral, or electronic
310 communications if such provider, or an officer, employee, or
311 agent thereof, or landlord, custodian, or other person, has been
312 provided with:
313 a. A court order directing such assistance signed by the
314 authorizing judge; or
315 b. A certification in writing by a person specified in s.
316 934.09(7) that no search warrant or court order is required by
317 law, that all statutory requirements have been met, and that the
318 specified assistance is required, setting forth the period of
319 time during which the provision of the information, facilities,
320 or technical assistance is authorized and specifying the
321 information, facilities, or technical assistance required; or
322 b. A search warrant issued by a judge of competent
323 jurisdiction as required by law.
324 3. A provider of wire, oral, or electronic communication
325 service, or an officer, employee, or agent thereof, or landlord,
326 custodian, or other person may not disclose the existence of any
327 interception or the device used to accomplish the interception
328 with respect to which the person has been served with a search
329 warrant furnished an order under this section and ss. 934.04
330 934.09, except as may otherwise be required by legal process and
331 then only after prior notice to the Governor, the Attorney
332 General, the statewide prosecutor, or a state attorney, as may
333 be appropriate. Any such disclosure renders such person liable
334 for the civil damages provided under s. 934.10, and such person
335 may be prosecuted under s. 934.43. An action may not be brought
336 against any provider of wire, oral, or electronic communication
337 service, or an officer, employee, or agent thereof, or landlord,
338 custodian, or other person for providing information,
339 facilities, or assistance in accordance with the terms of a
340 search warrant court order under this section and ss. 934.04
341 934.09.
342 (b) It is lawful under this section and ss. 934.04-934.09
343 for an officer, employee, or agent of the Federal Communications
344 Commission, in the normal course of his or her employment and in
345 discharge of the monitoring responsibilities exercised by the
346 commission in the enforcement of 47 U.S.C. chapter 5, to
347 intercept a wire, oral, or electronic communication transmitted
348 by radio or to disclose or use the information thereby obtained.
349 (c) It is lawful under this section and ss. 934.04-934.09
350 for an investigative or law enforcement officer or a person
351 acting under the direction of an investigative or law
352 enforcement officer to intercept a wire, oral, or electronic
353 communication when such person is a party to the communication
354 or one of the parties to the communication has given prior
355 consent to such interception and the purpose of such
356 interception is to obtain evidence of a criminal act.
357 (d) It is lawful under this section and ss. 934.04-934.09
358 for a person to intercept a wire, oral, or electronic
359 communication when all of the parties to the communication have
360 given prior consent to such interception.
361 (e) It is unlawful to intercept any wire, oral, or
362 electronic communication for the purpose of committing any
363 criminal act.
364 (f) It is lawful under this section and ss. 934.04-934.09
365 for an employee of a telephone company to intercept a wire
366 communication for the sole purpose of tracing the origin of such
367 communication when the interception is requested by the
368 recipient of the communication and the recipient alleges that
369 the communication is obscene, harassing, or threatening in
370 nature. The individual conducting the interception shall notify
371 local police authorities within 48 hours after the time of the
372 interception.
373 (g) It is lawful under this section and ss. 934.04-934.09
374 for an employee of:
375 1. An ambulance service licensed pursuant to s. 401.25, a
376 fire station employing firefighters as defined by s. 633.102, a
377 public utility, a law enforcement agency as defined by s.
378 934.02(10), or any other entity with published emergency
379 telephone numbers;
380 2. An agency operating an emergency telephone number “911”
381 system established pursuant to s. 365.171; or
382 3. The central abuse hotline operated pursuant to s. 39.201
383
384 to intercept and record incoming wire communications; however,
385 such employee may intercept and record incoming wire
386 communications on designated “911” telephone numbers and
387 published nonemergency telephone numbers staffed by trained
388 dispatchers at public safety answering points only. It is also
389 lawful for such employee to intercept and record outgoing wire
390 communications to the numbers from which such incoming wire
391 communications were placed when necessary to obtain information
392 required to provide the emergency services being requested. For
393 the purpose of this paragraph, the term “public utility” has the
394 same meaning as provided in s. 366.02 and includes a person,
395 partnership, association, or corporation now or hereafter owning
396 or operating equipment or facilities in the state for conveying
397 or transmitting messages or communications by telephone or
398 telegraph to the public for compensation.
399 (h) It shall not be unlawful under this section and ss.
400 934.04-934.09 for any person:
401 1. To intercept or access an electronic communication made
402 through an electronic communication system that is configured so
403 that such electronic communication is readily accessible to the
404 general public.
405 2. To intercept any radio communication which is
406 transmitted:
407 a. By any station for the use of the general public, or
408 that relates to ships, aircraft, vehicles, or persons in
409 distress;
410 b. By any governmental, law enforcement, civil defense,
411 private land mobile, or public safety communications system,
412 including any police or fire communications system, readily
413 accessible to the general public;
414 c. By a station operating on an authorized frequency within
415 the bands allocated to the amateur, citizens band, or general
416 mobile radio services; or
417 d. By any marine or aeronautical communications system.
418 3. To engage in any conduct which:
419 a. Is prohibited by s. 633 of the Communications Act of
420 1934; or
421 b. Is excepted from the application of s. 705(a) of the
422 Communications Act of 1934 by s. 705(b) of that act.
423 4. To intercept any wire or electronic communication the
424 transmission of which is causing harmful interference to any
425 lawfully operating station of consumer electronic equipment to
426 the extent necessary to identify the source of such
427 interference.
428 5. To intercept, if such person is another user of the same
429 frequency, any radio communication that is not scrambled or
430 encrypted made through a system that utilizes frequencies
431 monitored by individuals engaged in the provision or the use of
432 such system.
433 6. To intercept a satellite transmission that is not
434 scrambled or encrypted and that is transmitted:
435 a. To a broadcasting station for purposes of retransmission
436 to the general public; or
437 b. As an audio subcarrier intended for redistribution to
438 facilities open to the public, but not including data
439 transmissions or telephone calls, when such interception is not
440 for the purposes of direct or indirect commercial advantage or
441 private financial gain.
442 7. To intercept and privately view a private satellite
443 video communication that is not scrambled or encrypted or to
444 intercept a radio communication that is transmitted on
445 frequencies allocated under subpart D of part 74 of the rules of
446 the Federal Communications Commission that is not scrambled or
447 encrypted, if such interception is not for a tortious or illegal
448 purpose or for purposes of direct or indirect commercial
449 advantage or private commercial gain.
450 (i) It shall not be unlawful under this section and ss.
451 934.04-934.09:
452 1. To use a pen register or a trap and trace device as
453 authorized under ss. 934.31-934.34 or under federal law; or
454 2. For a provider of electronic communication service to
455 record the fact that a wire or electronic communication was
456 initiated or completed in order to protect such provider,
457 another provider furnishing service toward the completion of the
458 wire or electronic communication, or a user of that service,
459 from fraudulent, unlawful, or abusive use of such service.
460 (j) It is not unlawful under this section and ss. 934.04
461 934.09 for a person acting under color of law to intercept the
462 wire or electronic communications of a computer trespasser which
463 are transmitted to, through, or from a protected computer if:
464 1. The owner or operator of the protected computer
465 authorizes the interception of the communications of the
466 computer trespasser;
467 2. The person acting under color of law is lawfully engaged
468 in an investigation;
469 3. The person acting under color of law has reasonable
470 grounds to believe that the contents of the communications of
471 the computer trespasser will be relevant to the investigation;
472 and
473 4. The interception does not acquire communications other
474 than those transmitted to, through, or from the computer
475 trespasser.
476 (k) It is lawful under this section and ss. 934.04-934.09
477 for a child under 18 years of age to intercept and record an
478 oral communication if the child is a party to the communication
479 and has reasonable grounds to believe that recording the
480 communication will capture a statement by another party to the
481 communication that the other party intends to commit, is
482 committing, or has committed an unlawful sexual act or an
483 unlawful act of physical force or violence against the child.
484 Section 6. Section 934.06, Florida Statutes, is amended to
485 read:
486 934.06 Prohibition of use as evidence of intercepted wire
487 or oral communications; content of cellular phone, microphone
488 enabled household device, or portable electronic communication
489 device; exceptions exception.—Whenever any wire or oral
490 communication has been intercepted, or when the content of a
491 cellular phone, microphone-enabled household device, or portable
492 electronic communication device is obtained without a search
493 warrant supported by probable cause, no part of the contents of
494 such communication or content and no evidence derived therefrom
495 may be received in evidence in any trial, hearing, or other
496 proceeding in or before any court, grand jury, department,
497 officer, agency, regulatory body, legislative committee, or
498 other authority of the state, or a political subdivision
499 thereof, if the disclosure of that information would be in
500 violation of this chapter. The prohibition of use as evidence
501 provided in this section does not apply in cases of prosecution
502 for criminal interception in violation of the provisions of this
503 chapter, or in cases where the content of a cellular phone,
504 microphone-enabled household device, or portable electronic
505 communication device is lawfully obtained under circumstances
506 where a search warrant is not required.
507 Section 7. Subsections (1) and (2) of section 934.07,
508 Florida Statutes, are amended to read:
509 934.07 Authorization for interception of wire, oral, or
510 electronic communications.—
511 (1) The Governor, the Attorney General, the statewide
512 prosecutor, or any state attorney may authorize an application
513 to a judge of competent jurisdiction for, and such judge may
514 issue a search warrant as required by law grant in conformity
515 with ss. 934.03-934.09 an order authorizing or approving the
516 interception of, wire, oral, or electronic communications by:
517 (a) The Department of Law Enforcement or any law
518 enforcement agency as defined in s. 934.02 having responsibility
519 for the investigation of the offense as to which the application
520 is made when such interception may provide or has provided
521 evidence of the commission of the offense of murder, kidnapping,
522 aircraft piracy, arson, gambling, robbery, burglary, theft,
523 dealing in stolen property, criminal usury, bribery, or
524 extortion; any felony violation of ss. 790.161-790.166,
525 inclusive; any violation of s. 787.06; any violation of chapter
526 893; any violation of the provisions of the Florida Anti-Fencing
527 Act; any violation of chapter 895; any violation of chapter 896;
528 any violation of chapter 815; any violation of chapter 847; any
529 violation of s. 827.071; any violation of s. 944.40; or any
530 conspiracy or solicitation to commit any violation of the laws
531 of this state relating to the crimes specifically enumerated in
532 this paragraph.
533 (b) The Department of Law Enforcement, together with other
534 assisting personnel as authorized and requested by the
535 department under s. 934.09(5), for the investigation of the
536 offense as to which the application is made when such
537 interception may provide or has provided evidence of the
538 commission of any offense that may be an act of terrorism or in
539 furtherance of an act of terrorism or evidence of any conspiracy
540 or solicitation to commit any such violation.
541 (2)(a) If, during the course of an interception of
542 communications by a law enforcement agency as authorized under
543 paragraph (1)(a), the law enforcement agency finds that the
544 intercepted communications may provide or have provided evidence
545 of the commission of any offense that may be an act of terrorism
546 or in furtherance of an act of terrorism, or evidence of any
547 conspiracy or solicitation to commit any such violation, the law
548 enforcement agency shall promptly notify the Department of Law
549 Enforcement and apprise the department of the contents of the
550 intercepted communications. The agency notifying the department
551 may continue its previously authorized interception with
552 appropriate minimization, as applicable, and may otherwise
553 assist the department as provided in this section.
554 (b) Upon its receipt of information of the contents of an
555 intercepted communications from a law enforcement agency, the
556 Department of Law Enforcement shall promptly review the
557 information to determine whether the information relates to an
558 actual or anticipated act of terrorism as defined in this
559 section. If, after reviewing the contents of the intercepted
560 communications, there is probable cause that the contents of the
561 intercepted communications meet the criteria of paragraph
562 (1)(b), the Department of Law Enforcement may make application
563 for the interception of wire, oral, or electronic communications
564 consistent with paragraph (1)(b). The department may make an
565 independent new application for interception based on the
566 contents of the intercepted communications. Alternatively, the
567 department may request the law enforcement agency that provided
568 the information to join with the department in seeking a new
569 search warrant as required by law or an amendment of the
570 original interception search warrant order, or may seek
571 additional authority to continue intercepting communications
572 under the direction of the department. In carrying out its
573 duties under this section, the department may use the provisions
574 for an emergency interception provided in s. 934.09(7) if
575 applicable under statutory criteria.
576 Section 8. Section 934.09, Florida Statutes, is amended to
577 read:
578 934.09 Procedure for interception of wire, oral, or
579 electronic communications.—
580 (1) Each application for a search warrant an order
581 authorizing or approving the interception of a wire, oral, or
582 electronic communication under ss. 934.03-934.09 shall be made
583 in writing upon oath or affirmation to a judge of competent
584 jurisdiction and shall state the applicant’s authority to make
585 such application. Each application shall include the following
586 information:
587 (a) The identity of the investigative or law enforcement
588 officer making the application and the officer authorizing the
589 application.
590 (b) A full and complete statement of the facts and
591 circumstances relied upon by the applicant to justify his or her
592 belief that a search warrant an order should be issued,
593 including:
594 1. Details as to the particular offense that has been, is
595 being, or is about to be committed.
596 2. Except as provided in subsection (11), a particular
597 description of the nature and location of the facilities from
598 which, or the place where, the communications are to be
599 intercepted.
600 3. A particular description of the type of communications
601 sought to be intercepted.
602 4. The identity of the person, if known, committing the
603 offense and whose communications are to be intercepted.
604 (c) A full and complete statement as to whether or not
605 other investigative procedures have been tried and failed or why
606 they reasonably appear to be unlikely to succeed if tried or to
607 be too dangerous.
608 (d) A statement of the period of time for which the
609 interception is required to be maintained and, if the nature of
610 the investigation is such that the authorization for
611 interception should not automatically terminate when the
612 described type of communication has been first obtained, a
613 particular description of facts establishing probable cause to
614 believe that additional communications of the same type will
615 occur thereafter.
616 (e) A full and complete statement of the facts concerning
617 all previous applications known to the individual authorizing
618 and making the application, made to any judge for authorization
619 to intercept, or for approval of interceptions of, wire, oral,
620 or electronic communications involving any of the same persons,
621 facilities, or places specified in the application, and the
622 action taken by the judge on each such application.
623 (f) When the application is for the extension of a search
624 warrant an order, a statement setting forth the results thus far
625 obtained from the interception or a reasonable explanation of
626 the failure to obtain such results.
627 (2) The judge may require the applicant to furnish
628 additional testimony or documentary evidence in support of the
629 application.
630 (3) Upon such application, the judge may authorize a search
631 warrant enter an ex parte order, as requested or as modified,
632 authorizing or approving interception of wire, oral, or
633 electronic communications within the territorial jurisdiction of
634 the court in which the judge is sitting, and outside such
635 jurisdiction but within the State of Florida in the case of a
636 mobile interception device authorized by the judge within such
637 jurisdiction, if the judge determines on the basis of the facts
638 submitted by the applicant that:
639 (a) There is probable cause for belief that an individual
640 is committing, has committed, or is about to commit an offense
641 as provided in s. 934.07.
642 (b) There is probable cause for belief that particular
643 communications concerning that offense will be obtained through
644 such interception.
645 (c) Normal investigative procedures have been tried and
646 have failed or reasonably appear to be unlikely to succeed if
647 tried or to be too dangerous.
648 (d) Except as provided in subsection (11), there is
649 probable cause for belief that the facilities from which, or the
650 place where, the wire, oral, or electronic communications are to
651 be intercepted are being used, or are about to be used, in
652 connection with the commission of such offense, or are leased
653 to, listed in the name of, or commonly used by such person.
654 (4) Each search warrant order authorizing or approving the
655 interception of any wire, oral, or electronic communication
656 shall specify:
657 (a) The identity of the person, if known, whose
658 communications are to be intercepted.
659 (b) The nature and location of the communications
660 facilities as to which, or the place where, authority to
661 intercept is granted.
662 (c) A particular description of the type of communication
663 sought to be intercepted and a statement of the particular
664 offense to which it relates.
665 (d) The identity of the agency authorized to intercept the
666 communications and of the person authorizing the application.
667 (e) The period of time during which such interception is
668 authorized, including a statement as to whether or not the
669 interception shall automatically terminate when the described
670 communication has been first obtained.
671
672 A search warrant An order authorizing the interception of a
673 wire, oral, or electronic communication shall, upon the request
674 of the applicant, direct that a provider of wire or electronic
675 communication service, landlord, custodian, or other person
676 shall furnish the applicant forthwith all information,
677 facilities, and technical assistance necessary to accomplish the
678 interception unobtrusively and with a minimum of interference
679 with the services that such service provider, landlord,
680 custodian, or person is according the person whose
681 communications are to be intercepted. The obligation of a
682 provider of wire, oral, or electronic communication service
683 under such a search warrant an order may include, but is not
684 limited to, conducting an in-progress trace during an
685 interception, or providing other assistance to support the
686 investigation as may be specified in the search warrant order.
687 Any provider of wire or electronic communication service,
688 landlord, custodian, or other person furnishing such facilities
689 or technical assistance shall be compensated therefor by the
690 applicant for reasonable expenses incurred in providing such
691 facilities or assistance.
692 (5) No search warrant order entered under this section may
693 authorize or approve the interception of any wire, oral, or
694 electronic communication for any period longer than is necessary
695 to achieve the objective of the authorization or in any event
696 longer than 30 days. Such 30-day period begins on the day on
697 which the agent or officer of the law enforcement agency first
698 begins to conduct an interception under the search warrant order
699 or 10 days after the search warrant is approved order is
700 entered, whichever occurs earlier. Extensions of a search
701 warrant an order may be granted but only upon application for an
702 extension made in accordance with subsection (1) and upon the
703 court making the findings required by subsection (3). The period
704 of extension shall be no longer than the authorizing judge deems
705 necessary to achieve the purposes for which it was granted and
706 in no event for longer than 30 days. Every search warrant order
707 and extension thereof shall contain a provision that the
708 authorization to intercept shall be executed as soon as
709 practicable, shall be conducted in such a way as to minimize the
710 interception of communications not otherwise subject to
711 interception under ss. 934.03-934.09, and must terminate upon
712 attainment of the authorized objective or in any event in 30
713 days. If the intercepted communication is in code or foreign
714 language and an expert in that foreign language or code is not
715 reasonably available during the interception period,
716 minimization may be accomplished as soon as practicable after
717 such interception. An interception under ss. 934.03-934.09 may
718 be conducted in whole or in part by government personnel or by
719 an individual operating under a contract with the government,
720 acting under the supervision of an agent or officer of the law
721 enforcement agency authorized to conduct the interception.
722 (6) Whenever a search warrant an order authorizing
723 interception is granted entered pursuant to ss. 934.03-934.09,
724 the search warrant order may require reports to be made to the
725 judge who issued the search warrant order showing what progress
726 has been made toward achievement of the authorized objective and
727 the need for continued interception. Such reports shall be made
728 at such intervals as the judge may require.
729 (7) Notwithstanding any other provision of this chapter,
730 any investigative or law enforcement officer specially
731 designated by the Governor, the Attorney General, the statewide
732 prosecutor, or a state attorney acting under this chapter, who
733 reasonably determines that:
734 (a) An emergency exists that:
735 1. Involves immediate danger of death or serious physical
736 injury to any person, the danger of escape of a prisoner, or
737 conspiratorial activities threatening the security interest of
738 the nation or state; and
739 2. Requires that a wire, oral, or electronic communication
740 be intercepted before a search warrant an order authorizing such
741 interception can, with due diligence, be obtained; and
742 (b) There are grounds upon which a search warrant an order
743 could be entered under this chapter to authorize such
744 interception
745
746 may intercept such wire, oral, or electronic communication if an
747 application for a search warrant an order approving the
748 interception is made in accordance with this section within 48
749 hours after the interception has occurred or begins to occur. In
750 the absence of a search warrant an order, such interception
751 shall immediately terminate when the communication sought is
752 obtained or when the application for the search warrant order is
753 denied, whichever is earlier. If such application for approval
754 is denied, or in any other case in which the interception is
755 terminated without a search warrant an order having been issued,
756 the contents of any wire, oral, or electronic communication
757 intercepted shall be treated as having been obtained in
758 violation of s. 934.03(4), and an inventory shall be served as
759 provided for in paragraph (8)(e) on the person named in the
760 application.
761 (8)(a) The contents of any wire, oral, or electronic
762 communication intercepted by any means authorized by ss. 934.03
763 934.09 shall, if possible, be recorded on tape or wire or other
764 comparable device. The recording of the contents of any wire,
765 oral, or electronic communication under this subsection shall be
766 kept in such a way as will protect the recording from editing or
767 other alterations. Immediately upon the expiration of the period
768 of the search warrant order, or extensions thereof, such
769 recordings shall be made available to the judge approving the
770 search warrant issuing such order and sealed under his or her
771 directions. Custody of the recordings shall be wherever the
772 judge orders. They shall not be destroyed except upon an order
773 of the issuing or denying judge, or that judge’s successor in
774 office, and in any event shall be kept for 10 years. Duplicate
775 recordings may be made for use or disclosure pursuant to the
776 provisions of s. 934.08(1) and (2) for investigations, or for
777 purposes of discovery as required by law.
778 (b) The presence of the seal provided for by this
779 subsection, or a satisfactory explanation for the absence
780 thereof, shall be a prerequisite for the use or disclosure of
781 the contents of any wire, oral, or electronic communication or
782 evidence derived therefrom under s. 934.08(3), as required by
783 federal law.
784 (c) Applications made and search warrants orders granted
785 under ss. 934.03-934.09 shall be sealed by the judge. Custody of
786 the applications and search warrants orders shall be wherever
787 the judge directs. As required by federal law, such applications
788 and search warrants orders shall be disclosed only for purposes
789 of discovery or upon a showing of good cause before a judge of
790 competent jurisdiction and shall not be destroyed except on
791 order of the issuing or denying judge, or that judge’s successor
792 in office, and in any event shall be kept for 10 years.
793 (d) Any violation of the provisions of this subsection may
794 be punished as contempt of the issuing or denying judge.
795 (e) Within a reasonable time but not later than 90 days
796 after the termination of the period of a search warrant an order
797 or extensions thereof, the issuing or denying judge shall cause
798 to be served on the persons named in the search warrant order or
799 the application, and such other parties to intercepted
800 communications as the judge may determine in his or her
801 discretion to be in the interest of justice, an inventory which
802 shall include notice of:
803 1. The fact of the approval of the search warrant entry of
804 the order or the application.
805 2. The date of the approval of the search warrant entry and
806 the period of authorized, approved, or disapproved interception,
807 or the denial of the application.
808 3. The fact that during the period wire, oral, or
809 electronic communications were or were not intercepted.
810
811 The judge, upon the filing of a motion, may make available to
812 such person or the person’s counsel for inspection such portions
813 of the intercepted communications, applications, and search
814 warrants orders as the judge determines to be in the interest of
815 justice. On an ex parte showing of good cause to a judge of
816 competent jurisdiction, the serving of the inventory required by
817 this paragraph may be postponed.
818 (9) As required by federal law, The contents of any
819 intercepted wire, oral, or electronic communication or evidence
820 derived therefrom shall not be received in evidence or otherwise
821 disclosed in any trial, hearing, or other proceeding unless each
822 party, not less than 10 days before the trial, hearing, or
823 proceeding, has been furnished with a copy of the search warrant
824 court order and accompanying application under which the
825 interception was authorized or approved. This 10-day period may
826 be waived by the judge if he or she finds that it was not
827 possible to furnish the party with the above information 10 days
828 before the trial, hearing, or proceeding and that the party will
829 not be prejudiced by the delay in receiving such information.
830 (10)(a) An Any aggrieved person before or in any trial,
831 hearing, or proceeding in or before any court, department,
832 officer, agency, regulatory body, or other authority may move to
833 suppress the contents of any intercepted wire, oral, or
834 electronic communication, or evidence derived therefrom, on the
835 grounds that:
836 1. The communication was unlawfully intercepted;
837 2. The search warrant order of authorization or approval
838 under which it was intercepted is insufficient on its face; or
839 3. The interception was not made in conformity with the
840 search warrant order of authorization or approval.
841 (b) Except as otherwise provided in the applicable Florida
842 Rules of Criminal Procedure, in a criminal matter:
843 1. Such motion shall be made before the trial, hearing, or
844 proceeding unless there was no opportunity to make such motion
845 or the person was not aware of the grounds of the motion.
846 2. If the motion is granted, the contents of the
847 intercepted wire or oral communication, or evidence derived
848 therefrom, shall be treated as having been obtained in violation
849 of ss. 934.03-934.09 and are not admissible as evidence.
850 3. The judge, upon the filing of such motion by the
851 aggrieved person, may make available to the aggrieved person or
852 his or her counsel for inspection such portions of the
853 intercepted communication or evidence derived therefrom as the
854 judge determines to be in the interest of justice.
855 (c)(b) In addition to any other right to appeal, the state
856 shall have the right to appeal from an order granting a motion
857 to suppress made under paragraph (a) or the denial of an
858 application for a search warrant an order of approval if the
859 attorney shall certify to the judge or other official granting
860 such motion or denying such application that the appeal is not
861 taken for purposes of delay. Such appeal shall be taken within
862 30 days after the date the order was entered and shall be
863 diligently prosecuted.
864 (d)(c) The remedies and sanctions described in ss. 934.03
865 934.10 with respect to the interception of electronic
866 communications are the only judicial remedies and sanctions for
867 violations of those sections involving such communications.
868 (11) The requirements of subparagraph (1)(b)2. and
869 paragraph (3)(d) relating to the specification of the facilities
870 from which, or the place where, the communication is to be
871 intercepted do not apply if:
872 (a) In the case of an application with respect to the
873 interception of an oral communication:
874 1. The application is by an agent or officer of a law
875 enforcement agency and is approved by the Governor, the Attorney
876 General, the statewide prosecutor, or a state attorney.
877 2. The application contains a full and complete statement
878 as to why such specification is not practical and identifies the
879 person committing the offense and whose communications are to be
880 intercepted.
881 3. The judge finds that such specification is not
882 practical.
883 (b) In the case of an application with respect to a wire or
884 electronic communication:
885 1. The application is by an agent or officer of a law
886 enforcement agency and is approved by the Governor, the Attorney
887 General, the statewide prosecutor, or a state attorney.
888 2. The application identifies the person believed to be
889 committing the offense and whose communications are to be
890 intercepted and the applicant makes a showing that there is
891 probable cause to believe that the person’s actions could have
892 the effect of thwarting interception from a specified facility
893 or that the person whose communications are to be intercepted
894 has removed, or is likely to remove, himself or herself to
895 another judicial circuit within the state.
896 3. The judge finds that such showing has been adequately
897 made.
898 4. The search warrant order authorizing or approving the
899 interception is limited to interception only for such time as it
900 is reasonable to presume that the person identified in the
901 application is or was reasonably proximate to the instrument
902 through which such communication will be or was transmitted.
903
904 Consistent with this paragraph, a judge of competent
905 jurisdiction may authorize interception within this state,
906 whether the interception is within or outside the court’s
907 jurisdiction, if the application for the interception makes a
908 showing that some activity or conspiracy believed to be related
909 to, or in furtherance of, the criminal predicate for the
910 requested interception has occurred or will likely occur, or the
911 communication to be intercepted or expected to be intercepted is
912 occurring or will likely occur, in whole or in part, within the
913 jurisdiction of the court where the order is being sought.
914 (12) If an interception of a communication is to be carried
915 out pursuant to subsection (11), such interception may not begin
916 until the facilities from which, or the place where, the
917 communication is to be intercepted is ascertained by the person
918 implementing the interception search warrant order. A provider
919 of wire or electronic communications service that has received a
920 search warrant an order as provided under paragraph (11)(b) may
921 petition the court to modify or quash the search warrant order
922 on the ground that the interception cannot be performed in a
923 timely or reasonable fashion. The court, upon notice to the
924 state, shall decide such a petition expeditiously.
925 (13) Consistent with this section, a judge of competent
926 jurisdiction may authorize interception within this state,
927 whether the interception is within or outside the court’s
928 jurisdiction, if the application for the interception makes a
929 showing that some activity or conspiracy believed to be related
930 to, or in furtherance of, the criminal predicate for the
931 requested interception has occurred or will likely occur, or the
932 communication to be intercepted or expected to be intercepted is
933 occurring or will likely occur, in whole or in part, within the
934 jurisdiction of the court where the search warrant is being
935 sought.
936 Section 9. Subsection (2) of section 934.10, Florida
937 Statutes, is amended, and subsection (1) of that section is
938 republished, to read:
939 934.10 Civil remedies.—
940 (1) Any person whose wire, oral, or electronic
941 communication is intercepted, disclosed, or used in violation of
942 ss. 934.03-934.09 shall have a civil cause of action against any
943 person or entity who intercepts, discloses, or uses, or procures
944 any other person or entity to intercept, disclose, or use, such
945 communications and shall be entitled to recover from any such
946 person or entity which engaged in that violation such relief as
947 may be appropriate, including:
948 (a) Preliminary or equitable or declaratory relief as may
949 be appropriate;
950 (b) Actual damages, but not less than liquidated damages
951 computed at the rate of $100 a day for each day of violation or
952 $1,000, whichever is higher;
953 (c) Punitive damages; and
954 (d) A reasonable attorney’s fee and other litigation costs
955 reasonably incurred.
956 (2) A good faith reliance on any of the following
957 constitutes a complete defense to any civil, criminal, or
958 administrative action arising out of such conduct under the laws
959 of this state:
960 (a) A search warrant court order, subpoena, or legislative
961 authorization as provided for in ss. 934.03-934.09;,
962 (b) A request of an investigative or law enforcement
963 officer under s. 934.09(7);, or
964 (c) A good faith determination that Florida or federal law,
965 other than 18 U.S.C. s. 2511(2)(d), authorized permitted the
966 conduct complained of
967
968 shall constitute a complete defense to any civil or criminal, or
969 administrative action arising out of such conduct under the laws
970 of this state.
971 Section 10. Section 934.21, Florida Statutes, is amended to
972 read:
973 934.21 Unlawful access to stored communications;
974 penalties.—
975 (1) Except as provided in subsection (3), whoever:
976 (a) Intentionally accesses without authorization a facility
977 through which an electronic communication service is provided,
978 or
979 (b) Intentionally exceeds an authorization to access such
980 facility,
981
982 and thereby obtains, alters, or prevents authorized access to a
983 wire or electronic communication while it is in electronic
984 storage in such system shall be punished as provided in
985 subsection (2).
986 (2) The punishment for an offense under subsection (1) is
987 as follows:
988 (a) If the offense is committed for purposes of commercial
989 advantage, malicious destruction or damage, or private
990 commercial gain, the person is:
991 1. In the case of a first offense under this subsection,
992 commits guilty of a misdemeanor of the first degree, punishable
993 as provided in s. 775.082, s. 775.083, or s. 934.41.
994 2. In the case of any subsequent offense under this
995 subsection, commits guilty of a felony of the third degree,
996 punishable as provided in s. 775.082, s. 775.083, s. 775.084, or
997 s. 934.41.
998 (b) In any other case, the person commits is guilty of a
999 misdemeanor of the second degree, punishable as provided in s.
1000 775.082 or s. 775.083.
1001 (3) Subsection (1) does not apply with respect to conduct
1002 authorized:
1003 (a) By the person or entity providing a wire, oral, or
1004 electronic communications service, including through cellular
1005 phones, microphone-enabled household devices, or portable
1006 electronic communication devices;
1007 (b) By a user of a wire, oral, or electronic communications
1008 service, including through cellular phones, microphone-enabled
1009 household devices, or portable electronic communication devices,
1010 with respect to a communication of or intended for that user; or
1011 (c) In s. 934.09, s. 934.23, or s. 934.24;
1012 (d) In chapter 933; or
1013 (e) For accessing for a legitimate business purpose
1014 information that is not personally identifiable or that has been
1015 collected in a way that prevents identification of the user of
1016 the device.
1017 Section 11. Section 934.42, Florida Statutes, is amended to
1018 read:
1019 934.42 Mobile tracking device and location tracking
1020 authorization.—
1021 (1) As used in this section, the term:
1022 (a) “Mobile tracking device” means an electronic or
1023 mechanical device that tracks the movement of a person or an
1024 object.
1025 (b) “Real-time location tracking” means the:
1026 1. Installation and use of a mobile tracking device on the
1027 object to be tracked;
1028 2. Acquisition of real-time cell-site location data; or
1029 3. Acquisition of real-time precise global positioning
1030 system location data.
1031 (c) “Historical location data” means historical precise
1032 global positioning system location data in the possession of a
1033 provider.
1034 (2)(1) An investigative or law enforcement officer may make
1035 application to a judge of competent jurisdiction for a search
1036 warrant an order authorizing or approving real-time location
1037 tracking or the acquisition of historical location data in the
1038 possession of the provider the installation and use of a mobile
1039 tracking device.
1040 (3)(2) An application under subsection (2) (1) of this
1041 section must include:
1042 (a) A statement of the identity of the applicant and the
1043 identity of the law enforcement agency conducting the
1044 investigation.
1045 (b) A statement setting forth a reasonable period of time
1046 the mobile tracking device may be used or the location data may
1047 be obtained in real time, not to exceed 45 days from the date on
1048 which the search warrant is issued. The court may, for good
1049 cause, grant one or more extensions for a reasonable period of
1050 time, not to exceed 45 days each. When seeking historical
1051 location data, the applicant must specify a date range for the
1052 data sought certification by the applicant that the information
1053 likely to be obtained is relevant to an ongoing criminal
1054 investigation being conducted by the investigating agency.
1055 (c) A statement of the offense to which the information
1056 likely to be obtained relates.
1057 (d) A statement as to whether it may be necessary to use
1058 and monitor the mobile tracking device outside the jurisdiction
1059 of the court from which authorization is being sought.
1060 (4)(3) Upon application made as provided under subsection
1061 (3) (2), the court, if it finds probable cause that the
1062 certification and finds that the statements required by
1063 subsection (3) (2) have been made in the application, must grant
1064 a search warrant shall enter an ex parte order authorizing real
1065 time location tracking or the acquisition of historical location
1066 data the installation and use of a mobile tracking device. Such
1067 search warrant order may authorize the location tracking use of
1068 the device within the jurisdiction of the court and outside that
1069 jurisdiction but within the State of Florida if the location
1070 tracking device is initiated installed within the jurisdiction
1071 of the court. The search warrant must command the investigative
1072 or law enforcement officer to complete any initiation of the
1073 location tracking or execution of the search warrant for
1074 historical location data authorized by the search warrant within
1075 a specified period of time not to exceed 10 calendar days.
1076 (5)(4) A court may not require greater specificity or
1077 additional information beyond that which is required by law and
1078 this section as a requisite for issuing a search warrant an
1079 order.
1080 (6) Within 10 days after the time period specified in
1081 paragraph (3)(b) has ended, the investigative or law enforcement
1082 officer executing a search warrant must return the search
1083 warrant to the issuing judge. When the search warrant is
1084 authorizing the acquisition of historical location data, the
1085 investigative or law enforcement officer executing the search
1086 warrant must return the search warrant to the issuing judge
1087 within 10 days after receipt of the records. The investigative
1088 or law enforcement officer may do so by reliable electronic
1089 means.
1090 (7) Within 10 days after the time period specified in
1091 paragraph (3)(b) has ended, the investigative or law enforcement
1092 officer executing a search warrant must serve a copy of the
1093 search warrant on the person who, or whose property, was
1094 tracked. When the search warrant is authorizing the acquisition
1095 of historical location data, the investigative or law
1096 enforcement officer executing the search warrant must serve a
1097 copy of the search warrant on the person whose data was obtained
1098 within 10 days after receipt of the records. Service may be
1099 accomplished by delivering a copy to the person who, or whose
1100 property, was tracked or whose data was obtained or by leaving a
1101 copy at the person’s residence or usual place of abode with an
1102 individual of suitable age and discretion who resides at that
1103 location and by mailing a copy to the person’s last known
1104 address. Upon a showing of good cause to a court of competent
1105 jurisdiction, the court may grant one or more postponements of
1106 this notice for a period of 90 days each.
1107 (8)(5) The standards established by Florida courts and the
1108 United States Supreme Court for the installation, use, or and
1109 monitoring of mobile tracking devices and the acquisition of
1110 location data shall apply to the installation, use, or
1111 monitoring and use of any device and the acquisition of location
1112 data as authorized by this section.
1113 (6) As used in this section, a “tracking device” means an
1114 electronic or mechanical device which permits the tracking of
1115 the movement of a person or object.
1116 (9)(a) Notwithstanding any other provision of this chapter,
1117 any investigative or law enforcement officer specially
1118 designated by the Governor, the Attorney General, the statewide
1119 prosecutor, or a state attorney acting pursuant to this chapter
1120 who reasonably determines that:
1121 1. An emergency exists which:
1122 a. Involves immediate danger of death or serious physical
1123 injury to any person or the danger of escape of a prisoner; and
1124 b. Requires real-time location tracking before a search
1125 warrant authorizing such tracking can, with due diligence, be
1126 obtained; and
1127 2. There are grounds upon which a search warrant could be
1128 issued under this chapter to authorize such tracking,
1129
1130 may engage in real-time location tracking if, within 48 hours
1131 after the tracking has occurred or begins to occur, a search
1132 warrant approving the tracking is issued in accordance with this
1133 section.
1134 (b) In the absence of an authorizing search warrant, such
1135 tracking must immediately terminate when the information sought
1136 is obtained, when the application for the search warrant is
1137 denied, or when 48 hours have lapsed since the tracking began,
1138 whichever is earlier.
1139 Section 12. For the purpose of incorporating the amendments
1140 made by this act to sections 934.03 and 934.07, Florida
1141 Statutes, in a reference thereto, paragraph (b) of subsection
1142 (2) of section 934.22, Florida Statutes, is reenacted to read:
1143 934.22 Voluntary disclosure of customer communications or
1144 records.—
1145 (2) A provider described in subsection (1) may divulge the
1146 contents of a communication:
1147 (b) As otherwise authorized in s. 934.03(2)(a), s. 934.07,
1148 or s. 934.23.
1149 Section 13. For the purpose of incorporating the amendments
1150 made by this act to sections 934.09 and 934.21, Florida
1151 Statutes, in references thereto, subsections (1) and (4) of
1152 section 934.27, Florida Statutes, are reenacted to read:
1153 934.27 Civil action: relief; damages; defenses.—
1154 (1) Except as provided in s. 934.23(5), any provider of
1155 electronic communication service, or subscriber or customer
1156 thereof, aggrieved by any violation of ss. 934.21-934.28 in
1157 which the conduct constituting the violation is engaged in with
1158 a knowing or intentional state of mind may, in a civil action,
1159 recover from the person or entity which engaged in that
1160 violation such relief as is appropriate.
1161 (4) A good faith reliance on any of the following is a
1162 complete defense to any civil or criminal action brought under
1163 ss. 934.21-934.28:
1164 (a) A court warrant or order, a subpoena, or a statutory
1165 authorization, including, but not limited to, a request of an
1166 investigative or law enforcement officer to preserve records or
1167 other evidence, as provided in s. 934.23(7).
1168 (b) A request of an investigative or law enforcement
1169 officer under s. 934.09(7).
1170 (c) A good faith determination that s. 934.03(3) permitted
1171 the conduct complained of.
1172 Section 14. For the purpose of incorporating the amendment
1173 made by this act to section 934.21, Florida Statutes, in a
1174 reference thereto, subsection (6) of section 934.23, Florida
1175 Statutes, is reenacted to read:
1176 934.23 Required disclosure of customer communications or
1177 records.—
1178 (6) No cause of action shall lie in any court against any
1179 provider of wire or electronic communication service, its
1180 officers, employees, agents, or other specified persons for
1181 providing information, facilities, or assistance in accordance
1182 with the terms of a court order, warrant, subpoena, or
1183 certification under ss. 934.21-934.28.
1184 Section 15. For the purpose of incorporating the amendment
1185 made by this act to section 934.21, Florida Statutes, in
1186 references thereto, subsections (6) and (7) of section 934.24,
1187 Florida Statutes, are reenacted to read:
1188 934.24 Backup preservation; customer notification;
1189 challenges by customer.—
1190 (6) Within 14 days after notice by the investigative or law
1191 enforcement officer to the subscriber or customer under
1192 subsection (2), the subscriber or customer may file a motion to
1193 quash the subpoena or vacate the court order seeking contents of
1194 electronic communications, with copies served upon the
1195 investigative or law enforcement officer and with written notice
1196 of such challenge to the service provider. A motion to vacate a
1197 court order must be filed in the court which issued the order. A
1198 motion to quash a subpoena must be filed in the circuit court in
1199 the circuit from which the subpoena issued. Such motion or
1200 application must contain an affidavit or sworn statement:
1201 (a) Stating that the applicant is a subscriber or customer
1202 of the service from which the contents of electronic
1203 communications maintained for her or him have been sought, and
1204 (b) Stating the applicant’s reasons for believing that the
1205 records sought are not relevant to a legitimate law enforcement
1206 inquiry or that there has not been substantial compliance with
1207 the provisions of ss. 934.21-934.28 in some other respect.
1208 (7) Except as otherwise obtained under paragraph (3)(a),
1209 service must be made under this section upon an investigative or
1210 law enforcement officer by delivering or mailing by registered
1211 or certified mail a copy of the papers to the person, office, or
1212 department specified in the notice which the subscriber or
1213 customer has received pursuant to ss. 934.21-934.28. For the
1214 purposes of this subsection, the term “delivering” shall be
1215 construed in accordance with the definition of “delivery” as
1216 provided in Rule 1.080, Florida Rules of Civil Procedure.
1217 Section 16. For the purpose of incorporating the amendment
1218 made by this act to section 934.21, Florida Statutes, in a
1219 reference thereto, subsection (5) of section 934.25, Florida
1220 Statutes, is reenacted to read:
1221 934.25 Delayed notice.—
1222 (5) Upon the expiration of the period of delay of
1223 notification under subsection (1) or subsection (4), the
1224 investigative or law enforcement officer must serve upon or
1225 deliver by registered or first-class mail to the subscriber or
1226 customer a copy of the process or request together with notice
1227 which:
1228 (a) States with reasonable specificity the nature of the
1229 law enforcement inquiry, and
1230 (b) Informs the subscriber or customer:
1231 1. That information maintained for such subscriber or
1232 customer by the service provider named in the process or request
1233 was supplied to or requested by the investigative or law
1234 enforcement officer and the date on which such information was
1235 so supplied or requested.
1236 2. That notification of such subscriber or customer was
1237 delayed.
1238 3. What investigative or law enforcement officer or what
1239 court made the certification or determination pursuant to which
1240 that delay was made.
1241 4. Which provision of ss. 934.21-934.28 allowed such delay.
1242 Section 17. For the purpose of incorporating the amendment
1243 made by this act to section 934.21, Florida Statutes, in a
1244 reference thereto, section 934.28, Florida Statutes, is
1245 reenacted to read:
1246 934.28 Exclusivity of remedies and sanctions.—The remedies
1247 and sanctions described in ss. 934.21-934.27 are the only
1248 judicial remedies and sanctions for violation of those sections.
1249 Section 18. This act shall take effect July 1, 2020.
