Florida Senate - 2013                          SENATOR AMENDMENT
       Bill No. CS for CS for SB 92
       
       
       
       
       
       
                                Barcode 841214                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                  Floor: WD            .                                
             04/04/2013 10:19 AM       .                                
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       Senator Brandes moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Between lines 53 and 54
    4  insert:
    5         Section 2. Portable electronic device; prohibited search
    6  and seizure.—
    7         (1) FINDINGS.—The Legislature finds that:
    8         (a) The number of residents of this state using and
    9  carrying portable electronic devices is growing exponentially.
   10  These devices are capable of storing and accessing a nearly
   11  limitless amount of personal and private information. Commonly
   12  linked to the Internet, these devices are used to access
   13  personal and business information and databases in computers and
   14  servers that are located anywhere in the world. A user of a
   15  portable electronic device has a reasonable and justifiable
   16  expectation of privacy in the information that these devices
   17  contain and can access through the Internet.
   18         (b) The right of the people to be secure in their persons,
   19  houses, papers, and effects against unreasonable searches and
   20  seizures, and against the unreasonable interception of private
   21  communications by any means, may not be violated.
   22         (c) A warrant may not be issued except upon probable cause,
   23  supported by affidavit, particularly describing the place or
   24  places to be searched, the person or persons, thing or things to
   25  be seized, the communication to be intercepted, and the nature
   26  of evidence to be obtained.
   27         (d) The intrusion on the privacy of information and the
   28  freedom of communication of any person who is arrested is of
   29  such enormity that the officer who makes the arrest must obtain
   30  a warrant to search the information contained in, or accessed
   31  through, the arrested person’s portable electronic device, such
   32  as a cellular telephone.
   33         (2) INTENT.—It is the intent of the Legislature that this
   34  section prohibit the search of information contained in a
   35  portable electronic device, as defined in this section, by a law
   36  enforcement agency or other governmental entity incident to
   37  arrest except pursuant to a warrant issued by a duly authorized
   38  judicial officer using established procedures.
   39         (3) DEFINITION.—As used in this section, the term “portable
   40  electronic device” means an object capable of being easily
   41  transported or conveyed by a person which is capable of
   42  creating, receiving, accessing, or storing electronic data or
   43  communications and communicates by any means with another entity
   44  or individual.
   45         (4) PROHIBITED ACTS.—
   46         (a) The contents and communications of a portable
   47  electronic device, including, but not limited to, data or
   48  information contained in or transmitted from the portable
   49  electronic device, are not subject to a search or seizure
   50  incident to arrest by a law enforcement agency or other
   51  governmental entity except pursuant to a warrant issued by a
   52  duly authorized judicial officer using the procedures
   53  established by law.
   54         (b)Incident to an arrest, a law enforcement agency or
   55  other governmental entity may temporarily maintain custody of
   56  and may employ a device designed to temporarily disable
   57  electronic devices while awaiting the issuance of a warrant by a
   58  duly authorized judicial officer.
   59         (c) Except as provided in paragraph (a), this section does
   60  not:
   61         1. Operate to curtail reliance by a law enforcement agency
   62  or other governmental entity on any other lawful exceptions to
   63  the warrant requirement.
   64         2. Prevent a governmental entity from acting upon a high
   65  risk of a terrorist attack by a specific individual or
   66  organization if the United States Secretary of Homeland Security
   67  determines that credible intelligence indicates that there is
   68  such a risk.
   69         3. Apply in cases of a search for a missing child who is
   70  less than 18 years of age, or a special needs or elderly adult.
   71         4. Apply to transponders used for the purpose of assessing
   72  or collecting tolls.
   73         5.Apply when the search incident to an arrest is strictly
   74  of the physical components or features of the portable
   75  electronic device and conducted out of concern for the safety of
   76  law enforcement officers.
   77         6. Apply to searches incident to an arrest regarding an
   78  internal affairs investigation of a law enforcement officer or
   79  personnel, conducted by a law enforcement agency or other
   80  governmental entity that employs sworn law enforcement officers.
   81         7. Apply to a device used to determine the location of an
   82  individual who has been required as part of a court order or
   83  adjudication to wear such a device.
   84         8.Apply whenever the governmental entity reasonably
   85  believes that an emergency involving immediate danger of death
   86  or serious physical injury to a person or the danger of escape
   87  of a prisoner or suspect requires the search or seizure, without
   88  delay, of the contents of a portable electronic device
   89  concerning a specific person or persons and that a warrant
   90  cannot be obtained in time to prevent the identified danger, or
   91  the possessor of the portable electronic device, in good faith,
   92  believes that an emergency involves the danger of death.
   93  
   94  Within 48 hours after seeking disclosure, the governmental
   95  entity seeking the contents of the portable electronic device
   96  shall file with the appropriate court a written statement
   97  setting forth the facts giving rise to the emergency and the
   98  facts that lead it to believe that the contents of a portable
   99  electronic device are important in addressing the emergency.
  100  Private entities providing electronic communications services
  101  may not be held responsible for ensuring that governmental
  102  entities comply with this section.
  103         (5) REMEDY.—
  104         (a) Any aggrieved person in a trial, hearing, or proceeding
  105  in or before a court, department, officer, agency, regulatory
  106  body, or other authority may move to suppress the contents of
  107  any information contained in a portable electronic device, or
  108  evidence derived therefrom, on the grounds that:
  109         1. The information was unlawfully obtained;
  110         2. The search warrant under which it was obtained is
  111  insufficient on its face; or
  112         3. The information was not obtained in conformity with the
  113  search warrant.
  114  
  115  Such motion shall be made before the trial, hearing, or
  116  proceeding unless there is no opportunity to make such motion or
  117  the person was not aware of the grounds of the motion. If the
  118  motion is granted, the information or evidence derived therefrom
  119  shall be suppressed. The judge, upon the filing of such motion
  120  by the aggrieved person, may make available to the aggrieved
  121  person or his or her counsel for inspection such portions of the
  122  information or evidence derived therefrom as the judge
  123  determines to be in the interest of justice.
  124         (b) In addition to any other right to appeal, the state has
  125  the right to appeal from an order granting a motion to suppress
  126  made under paragraph (a) or the denial of an application for a
  127  search warrant if the attorney certifies to the judge or other
  128  official granting such motion or denying such application that
  129  the appeal is not taken for purposes of delay. Such appeal shall
  130  be taken within 30 days after the date the order was entered and
  131  shall be diligently prosecuted.
  132         (c) The remedies and sanctions described herein with
  133  respect to the information contained in a portable electronic
  134  device are the only judicial remedies and sanctions for
  135  violations of those sections involving such information.
  136         Section 3. Location informational tracking; prohibited
  137  search and seizure.-
  138         (1) FINDINGS.-The Legislature finds that existing law
  139  authorizes a court to issue a warrant for the search of a place
  140  and the seizure of property or things identified in the warrant
  141  when there is probable cause to believe that specified grounds
  142  exist. The Legislature also finds that existing law provides for
  143  a judicial procedure for the acquisition of stored
  144  communications in the possession of a provider of electronic
  145  communication service or a remote computing service.
  146         (2) INTENT.-It is the intent of the Legislature to prohibit
  147  a governmental entity from obtaining the location information of
  148  an electronic device without a valid court order issued by a
  149  duly authorized judicial officer unless certain exceptions
  150  apply, including in an emergency or when requested by the owner
  151  of the device. However, it is also the intent of the Legislature
  152  that this act, with certain exceptions, prohibits the use of
  153  information obtained in violation of this section in a civil or
  154  administrative hearing.
  155         (3) DEFINITIONS.-As used in this section, the term:
  156         (a) “Electronic communication service” means a service that
  157  provides to its users the ability to send or receive wire or
  158  electronic communications.
  159         (b) “Governmental entity” means a state or local agency,
  160  including, but not limited to, a law enforcement entity or any
  161  other investigative entity, agency, department, division,
  162  bureau, board, or commission, or an individual acting or
  163  purporting to act for or on behalf of a state or local agency.
  164         (c) “Location information” means information, concerning
  165  the location of an electronic device, including both the current
  166  location and any previous location of the device, which, in
  167  whole or in part, is generated, derived from, or obtained by the
  168  operation of an electronic device.
  169         (d) “Location information service” means the provision of a
  170  global positioning service or other mapping, locational, or
  171  directional information service.
  172         (e) “Owner” means the person or entity recognized by the
  173  law as having the legal title, claim, or right to an electronic
  174  device.
  175         (f)“Portable electronic device” means an object capable of
  176  being easily transported or conveyed by a person which is
  177  capable of creating, receiving, accessing, or storing electronic
  178  data or communications and communicates by any means with
  179  another entity or individual.
  180         (g) “Remote computing service” means the provision of
  181  computer storage or processing services by means of an
  182  electronic communications system.
  183         (h) “User” means a person or entity that uses an electronic
  184  device.
  185         (4) PROHIBITED ACTS.-
  186         (a) A law enforcement agency or other governmental entity
  187  may not obtain the location information of an electronic device
  188  without a valid court order issued by a duly authorized judicial
  189  officer using the procedure set forth in this section.
  190         (b)An investigative or law enforcement officer may make
  191  application to a judge of competent jurisdiction for an order
  192  authorizing or approving the search for and seizure of the
  193  location information related to an electronic device.
  194         (c)The application must include:
  195         1.A statement of the identity of the applicant and the
  196  identity of the law enforcement agency conducting the
  197  investigation.
  198         2.A certification by the applicant that the information
  199  likely to be obtained is relevant to an ongoing criminal
  200  investigation being conducted by the investigating agency.
  201         3.A statement of the offense to which the information
  202  likely to be obtained relates.
  203         4.A statement as to whether it may be necessary to monitor
  204  the electronic device outside the jurisdiction of the court from
  205  which authorization is being sought.
  206         (d)If the court finds that the required certification and
  207  statements have been made in the application, the court shall
  208  enter an ex parte order authorizing the monitoring of an
  209  electronic device. Such order may authorize the monitoring of
  210  the device within the jurisdiction of the court and outside that
  211  jurisdiction, but within this state.
  212         (e)A court may not require greater specificity or
  213  additional information beyond that which is required by this
  214  section as a requisite for issuing an order.
  215         (f) A court order may not be issued for the location of an
  216  electronic device pursuant to this section for a period of time
  217  longer than is necessary to achieve the objective of the
  218  authorization, and in any event no longer than 30 days,
  219  commencing on the day the order is issued, or 10 days after the
  220  location information is initially obtained, whichever comes
  221  first.
  222         (g) Extensions of an order may be granted, but only upon a
  223  judge finding continuing probable cause and that the extension
  224  is necessary to achieve the objective of the authorization. Each
  225  extension granted for an order pursuant to this section may not
  226  exceed the time period that the authorizing judge deems
  227  necessary to achieve the purposes for which the order was
  228  originally granted, but in any event, may not exceed 60 days.
  229         (5) EXCEPTIONS.—Notwithstanding subsection (4), a
  230  governmental entity may obtain location information without a
  231  court order if disclosure of the location information is not
  232  prohibited by federal law and any of the following circumstances
  233  exists:
  234         (a)Transponders used for the purpose of assessing or
  235  collecting tolls.
  236         (b) Reliance by a law enforcement agency or other
  237  governmental entity on lawful exceptions to the warrant
  238  requirement.
  239         (c)A high risk of a terrorist attack by a specific
  240  individual or organization if the United States Secretary of
  241  Homeland Security determines that credible intelligence
  242  indicates that there is such a risk.
  243         (d) Cases of a search for a missing child who is less than
  244  18 years of age, or a special needs or elderly adult.
  245         (e) In order to respond to the user’s call for emergency
  246  services.
  247         (f) With the informed, affirmative consent of the owner or
  248  user of the electronic device; however the owner or user may not
  249  consent to the disclosure of location information if the device
  250  is known or believed to be in the possession of, or attached to
  251  a possession of, a third party known to the owner or user,
  252  unless the third party is under 18 years of age. The informed,
  253  affirmative consent of the owner or user of the electronic
  254  device may not be used as consent to disclose the location
  255  information of another portable electronic device that may be
  256  remotely linked or connected to the owner or user of the subject
  257  portable electronic device.
  258         (g) With the informed, affirmative consent of the legal
  259  guardian or next of kin of the electronic device’s user, if the
  260  user is believed to be deceased or has been reported missing and
  261  unable to be contacted.
  262         (h) If the governmental entity reasonably believes that an
  263  emergency involving immediate danger of death or serious
  264  physical injury to a person requires the disclosure, without
  265  delay, of location information concerning a specific person or
  266  persons and that a warrant cannot be obtained in time to prevent
  267  the identified danger and the possessor of the location
  268  information, in good faith, believes that an emergency involving
  269  danger of death or serious physical injury to a person requires
  270  the disclosure without delay.
  271  
  272  Within 48 hours of seeking disclosure, the governmental entity
  273  seeking the location information shall file with the appropriate
  274  court a written statement setting forth the facts giving rise to
  275  the emergency and the facts as to why the person whose location
  276  information was sought is believed to be important in addressing
  277  the emergency. Private entities providing electronic
  278  communications services shall not be made responsible for
  279  ensuring that governmental entities comply with this section.
  280         (6) REMEDY.—
  281         (a) Any aggrieved person in a trial, hearing, or proceeding
  282  in or before a court, department, officer, agency, regulatory
  283  body, or other authority may move to suppress the contents of
  284  information contained in a portable electronic device or
  285  evidence derived therefrom, on the grounds that:
  286         1. The information was unlawfully obtained;
  287         2. The order of authorization or approval under which it
  288  was obtained is insufficient on its face; or
  289         3. The information was not obtained in conformity with the
  290  order of authorization or approval.
  291  
  292  Such motion shall be made before the trial, hearing, or
  293  proceeding unless there was no opportunity to make such motion
  294  or the person was not aware of the grounds of the motion. If the
  295  motion is granted, the information or evidence derived therefrom
  296  shall be suppressed. The judge, upon the filing of such motion
  297  by the aggrieved person, may make available to the aggrieved
  298  person or his or her counsel for inspection such portions of the
  299  information or evidence derived therefrom as the judge
  300  determines to be in the interest of justice.
  301         (b) In addition to any other right to appeal, the state has
  302  the right to appeal from an order granting a motion to suppress
  303  made under paragraph (a) or the denial of an application for an
  304  order of approval if the attorney certifies to the judge or
  305  other official granting such motion or denying such application
  306  that the appeal is not taken for purposes of delay. Such appeal
  307  shall be taken within 30 days after the date the order was
  308  entered and shall be diligently prosecuted.
  309         (c) The remedies and sanctions described herein with
  310  respect to the information contained in a portable electronic
  311  device are the only judicial remedies and sanctions for
  312  violations of those sections involving such information.
  313         (7) CAUSE OF ACTION.—This section does not create a cause
  314  of action against any foreign or Florida private entity, its
  315  officers, employees, agents, or other specified persons for
  316  providing location information.
  317  
  318  ================= T I T L E  A M E N D M E N T ================
  319         And the title is amended as follows:
  320         Delete line 12
  321  and insert:
  322         of the act; providing legislative findings and intent;
  323         defining the term “portable electronic device”;
  324         providing that information contained in a portable
  325         electronic device is not subject to a search by a law
  326         enforcement officer incident to an arrest except
  327         pursuant to a warrant issued by a duly authorized
  328         judicial officer using procedures established by law;
  329         providing exceptions; providing a remedy; prohibiting
  330         location informational tracking; providing legislative
  331         findings and intent; defining terms; prohibiting a
  332         governmental entity from obtaining the location
  333         information of an electronic device without a valid
  334         court order issued by a duly authorized judicial
  335         officer; providing that a court order may not be
  336         issued for the location of an electronic device for a
  337         period of time longer than is necessary to achieve the
  338         objective of the court order; providing time periods
  339         for the validity of a court order; providing criteria
  340         by which a court order for location information may be
  341         extended; providing exceptions to the requirement that
  342         a court order be obtained for location information;
  343         providing a remedy; providing applicability; providing
  344         an effective date.