Florida Senate - 2015                                    SB 1530
       
       
        
       By Senator Brandes
       
       
       
       
       
       22-00907A-15                                          20151530__
    1                        A bill to be entitled                      
    2         An act relating to personal privacy; providing a short
    3         title; creating s. 901.40, F.S.; prohibiting use of
    4         certain radar technology by law enforcement agencies
    5         except for specified purposes; providing that evidence
    6         unlawfully collected is not admissible in criminal,
    7         civil, or administrative actions; creating s. 934.70,
    8         F.S.; providing definitions; providing restrictions on
    9         government searches of portable electronic devices;
   10         requiring a warrant for all searches of such devices;
   11         prohibiting government entities from entering into
   12         nondisclosure agreements with vendors of certain
   13         equipment used to monitor portable electronic devices;
   14         declaring existing nondisclosure agreements void;
   15         providing that such agreement is subject to public
   16         records laws; providing that evidence unlawfully
   17         collected is not admissible in criminal, civil, or
   18         administrative actions; providing exceptions;
   19         providing criminal penalties for violations;
   20         authorizing a private right of action against
   21         governmental entities for violations; requiring common
   22         carriers, electronic communications services, courts,
   23         and prosecutors to prepare certain reports to be
   24         delivered to the Department of Law Enforcement;
   25         providing requirements for such reports; requiring the
   26         department to prepare reports to be delivered to the
   27         Governor, the Legislature, and certain legislative
   28         entities; providing requirements for such reports;
   29         providing severability; providing an effective date.
   30          
   31  Be It Enacted by the Legislature of the State of Florida:
   32  
   33         Section 1. This act may be cited as the “Florida Privacy
   34  Protection Act.”
   35         Section 2. Section 901.40, Florida Statutes, is created to
   36  read:
   37         901.40 Prohibition against use of wall-penetrating radar
   38  device.—A law enforcement officer or law enforcement agency in
   39  this state may not use a wall-penetrating radar device. This
   40  section does not prohibit the use of a wall-penetrating radar
   41  device:
   42         (1) To execute a lawful arrest warrant issued pursuant to
   43  s. 901.02.
   44         (2) To counter a high risk of a terrorist attack by a
   45  specific individual or organization if the United States
   46  Secretary of Homeland Security determines that credible
   47  intelligence indicates that there is such a risk.
   48         (3) If the law enforcement agency first obtains a search
   49  warrant signed by a judge authorizing the use of a wall-
   50  penetrating radar device.
   51         (4) If the law enforcement agency has a reasonable belief
   52  that, under particular circumstances, swift action is needed to
   53  prevent imminent danger to life or serious damage to property;
   54  to forestall the imminent escape of a suspect or the destruction
   55  of evidence; or to achieve purposes, including, but not limited
   56  to, facilitating the search for a missing person.
   57  
   58  Evidence obtained in violation of this section is not admissible
   59  in a criminal, civil, administrative, or other proceeding except
   60  as proof of a violation of this section.
   61         Section 3. Section 934.70, Florida Statutes, is created to
   62  read:
   63         934.70 Portable electronic device privacy.—
   64         (1) As used in this section, the term:
   65         (a) “Department” means the Department of Law Enforcement.
   66         (b) “Government entity” means a federal, state, or local
   67  government agency, including, but not limited to, a law
   68  enforcement agency or any other investigative entity, agency,
   69  department, division, bureau, board, or commission or an
   70  individual acting or purporting to act for, or on behalf of, a
   71  federal, state, or local government agency. The term does not
   72  include a federal agency to the extent that federal law preempts
   73  this section.
   74         (c) “Information” includes any information concerning the
   75  substance or meaning or purported substance or meaning of a
   76  communication, including, but not limited to, the name and
   77  address of the sender and receiver and the time, date, location,
   78  and duration of the communication.
   79         (d) “Portable electronic device” means any portable device
   80  that is capable of creating, receiving, accessing, or storing
   81  electronic data or communications, including, but not limited
   82  to, cellular telephones.
   83         (2) Information contained in a portable electronic device
   84  is not subject to search by a government entity, including a
   85  search incident to a lawful arrest, except pursuant to a warrant
   86  signed by a judge and based on probable cause or pursuant to a
   87  lawful exception to the warrant requirement.
   88         (3) A government entity may not enter into a nondisclosure
   89  agreement with a vendor who sells equipment to monitor
   90  electronic devices. Any existing nondisclosure agreements are
   91  declared void as being against the public policy of the state.
   92  Records otherwise protected by such agreements are declared
   93  subject to the public records laws, and an agency may not refuse
   94  to disclose such agreements or related records upon request by
   95  citing such an agreement.
   96         (4) Evidence obtained in violation of this section is not
   97  admissible in a criminal, civil, administrative, or other
   98  proceeding except as proof of a violation of this section.
   99         (5) A government entity that purposely violates this
  100  section commits a misdemeanor of the first degree, punishable as
  101  provided in s. 775.082 or s. 775.083. A person injured by a
  102  government entity as a result of a violation of this section may
  103  file civil suit against the government entity.
  104         (6)(a) By January 15 of each year, a communication common
  105  carrier or electronic communications service doing business in
  106  this state shall report to the department the following
  107  information for the preceding calendar year, disaggregated by
  108  each law enforcement agency in this state making the applicable
  109  requests:
  110         1. The number of requests made for pen register or trap and
  111  trace information.
  112         2. The number of requests made for electronic serial number
  113  reader information.
  114         3. The number of requests made for location information.
  115         4. The number of individuals whose location information was
  116  disclosed.
  117         5. The amount that each law enforcement agency was billed
  118  by the communication common carrier or electronic communications
  119  service for each request made under subsections (1)-(3).
  120         (b) By the 30th day after expiration of a warrant or order
  121  issued under subsection (2) or an order extending the period of
  122  a warrant or order issued under subsection (2), or by the 30th
  123  day after the court denies an application for a warrant or order
  124  under subsection (2), the court shall submit to the department
  125  the following information, as applicable:
  126         1. The receipt of an application for a warrant or order
  127  under this section.
  128         2. The type of warrant or order for which the application
  129  was made.
  130         3. Whether any application for an order of extension was
  131  granted, granted as modified by the court, or denied.
  132         4. The period of monitoring authorized by the warrant or
  133  order and the number and duration of any extensions of the
  134  warrant.
  135         5. The offense under investigation, as specified in the
  136  application for the warrant or order or an extension of the
  137  warrant or order.
  138         6. The name of the law enforcement agency or prosecutor
  139  that submitted an application for the warrant or order or an
  140  extension of the warrant or order.
  141         (c) By January 15 of each year, each prosecutor that
  142  submits an application for a warrant or order or an extension of
  143  a warrant or order under this section shall submit to the
  144  department the following information for the preceding calendar
  145  year:
  146         1. The information required to be submitted by a court
  147  under paragraph (b) with respect to each application submitted
  148  by the prosecutor for the warrant or order or an extension of
  149  the warrant or order.
  150         2. A general description of information collected under
  151  each warrant or order that was issued by the court, including
  152  the approximate number of individuals for whom location
  153  information was intercepted and the approximate duration of the
  154  monitoring of the location information of those individuals.
  155         3. The number of arrests made as a result of information
  156  obtained under a warrant or order issued pursuant to subsection
  157  (2).
  158         4. The number of criminal trials commenced as a result of
  159  information obtained under a warrant or order issued pursuant to
  160  subsection (2).
  161         5. The number of convictions obtained as a result of
  162  information obtained under a warrant or order issued pursuant to
  163  subsection (2).
  164         (d) Reports submitted to the department under this section
  165  are expressly declared subject to disclosure under the public
  166  records laws and are not confidential or exempt.
  167         (e) By March 1 of each year, the department shall submit a
  168  report to the Governor, the President of the Senate, the Speaker
  169  of the House of Representatives, and the chairs of the standing
  170  committees of the Senate and the House of Representatives with
  171  primary jurisdiction over criminal justice. The report shall
  172  contain the following information for the preceding calendar
  173  year:
  174         1. An assessment of the extent of tracking or monitoring by
  175  law enforcement agencies of pen registers, trap and trace
  176  devices, electronic serial number readers, and location
  177  information.
  178         2. A comparison of the ratio of the number of applications
  179  for warrants or orders made pursuant to subsection (2) to the
  180  number of arrests and convictions resulting from information
  181  obtained under a warrant or order issued pursuant to subsection
  182  (2).
  183         3. Identification of the types of offenses investigated
  184  under a warrant or order issued pursuant to subsection (2).
  185         4. With respect to both state and local jurisdictions, an
  186  estimate of the total cost of conducting investigations under a
  187  warrant or order issued pursuant to subsection (2).
  188         Section 4. If any provision of this act or its application
  189  to any person or circumstance is held invalid, the invalidity
  190  does not affect other provisions or applications of this act
  191  which can be given effect without the invalid provision or
  192  application, and to this end the provisions of this act are
  193  severable.
  194         Section 5. This act shall take effect July 1, 2015.