Florida Senate - 2017                        COMMITTEE AMENDMENT
       Bill No. SB 972
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                   Comm: WD            .                                
                  04/17/2017           .                                

       The Committee on Criminal Justice (Rouson) recommended the
    1         Senate Amendment to Substitute Amendment (176364) (with
    2  title amendment)
    4         Between lines 5 and 6
    5  insert:
    6         Section 1. Section 775.211, Florida Statutes, is created to
    7  read:
    8         775.211 Subpoenas in investigations of sexual offenses.—
   10         (a)1.In an investigation of an offense involving the
   11  sexual exploitation or abuse of a child, an offense involving an
   12  unregistered sex offender, or an offense meeting the criteria
   13  specified for designation as a sexual predator under s. 775.21,
   14  a law enforcement agency may issue in writing and serve a
   15  subpoena requiring the production of records and things and
   16  testimony described in subparagraph 2.
   17         2. Except as provided in subparagraph 3., a subpoena issued
   18  under subparagraph 1. may require the production by their
   19  custodian of any records or things relevant to the investigation
   20  and testimony concerning their production and authenticity.
   21         3. A subpoena issued under subparagraph 1. to a provider of
   22  electronic communication services or remote computing services
   23  in the course of an investigation of an offense involving the
   24  sexual exploitation or abuse of a child may not extend beyond
   25  requiring the provider to disclose the information specified in
   26  s. 775.21, which may be relevant to an authorized law
   27  enforcement inquiry, or requiring the provider’s custodian of
   28  the records to give testimony concerning the production and
   29  authentication of such records or information.
   30         4. As used in this paragraph, the term “sex offender” means
   31  a person who has been convicted of committing, or attempting,
   32  soliciting, or conspiring to commit, any of the following
   33  criminal offenses in this state or similar offenses in another
   34  jurisdiction: s. 393.135(2); s. 394.4593(2); s. 787.01, s.
   35  787.02, or s. 787.025(2)(c), when the victim is a minor; s.
   36  787.06(3)(b), (d), (f), or (g); former s. 787.06(3)(h); s.
   37  794.011, excluding s. 794.011(10); s. 794.05; former s. 796.03;
   38  former s. 796.035; s. 800.04; s. 810.145(8); s. 825.1025; s.
   39  827.071; s. 847.0133; s. 847.0135, excluding s. 847.0135(6); s.
   40  847.0137; s. 847.0138; s. 847.0145; s. 895.03, if the court
   41  makes a written finding that the racketeering activity involved
   42  at least one sexual offense listed in this subparagraph or at
   43  least one offense listed in this subparagraph with sexual intent
   44  or motive; s. 916.1075(2); or s. 985.701(1).
   45         (b)A subpoena issued under this subsection must describe
   46  the records or things required to be produced and prescribe a
   47  date by which the records or things must be made available.
   48         (c)A witness subpoenaed under this subsection must be paid
   49  the same fees and mileage that are paid to a witness in the
   50  courts of this state.
   51         (d)At any time before the return date specified in the
   52  summons, the person or entity summoned, in the court having
   53  jurisdiction over such person or investigation, may petition for
   54  an order modifying or setting aside the summons or a prohibition
   55  on disclosure under paragraph (e).
   56         (e)1.If a subpoena issued under this subsection is
   57  accompanied by a certification under this subparagraph and
   58  notice of the right to judicial review under subparagraph 3.,
   59  the recipient of the subpoena may not disclose to any person for
   60  a period of 180 days that the law enforcement agency that issued
   61  the subpoena has sought or obtained access to information or
   62  records under this section. The law enforcement agency that
   63  issues the subpoena may request such certification by certifying
   64  to the court that the absence of a prohibition on disclosure may
   65  result in:
   66         a. Endangering the life or physical safety of an
   67  individual;
   68         b. Flight from prosecution;
   69         c. Destruction of or tampering with evidence;
   70         d. Intimidation of potential witnesses; or
   71         e. Seriously jeopardizing an investigation or unduly
   72  delaying a trial.
   73         2.a.A recipient of a subpoena issued under this subsection
   74  may disclose information otherwise subject to any applicable
   75  nondisclosure requirement to persons as necessary to comply with
   76  the request, to an attorney in order to obtain legal advice or
   77  assistance regarding the request, or to other persons as allowed
   78  by the law enforcement agency that issued the subpoena.
   79         b. A person to whom disclosure is made under sub
   80  subparagraph a. is subject to the nondisclosure requirements
   81  applicable to a person to whom a subpoena is issued under this
   82  subsection in the same manner as the person to whom the subpoena
   83  was issued.
   84         c. Any recipient who discloses to a person described in
   85  sub-subparagraph a. information otherwise subject to a
   86  nondisclosure requirement shall notify that person of the
   87  applicable nondisclosure requirement.
   88         d. At the request of the law enforcement agency that issued
   89  the subpoena, any person making or intending to make a
   90  disclosure under sub-subparagraph a. to a person other than an
   91  attorney shall identify to the law enforcement agency the person
   92  to whom such disclosure has been or will be made.
   93         3. A nondisclosure requirement imposed under subparagraph
   94  1. is subject to judicial review under subsection (5). A
   95  subpoena issued under this subsection in connection with a
   96  nondisclosure requirement imposed under subparagraph 1. must
   97  include notice of the availability of such judicial review. Such
   98  nondisclosure requirement may be extended in accordance with
   99  subsection (5).
  100         (f)A summons issued under this subsection may not compel
  101  the production of anything that would be protected from
  102  production under the standards applicable to a subpoena duces
  103  tecum issued by a court of this state.
  104         (g)If a case or proceeding does not arise from the
  105  production of records or other things pursuant to this
  106  subsection within a reasonable time after those records or
  107  things are produced, the agency to which those records or things
  108  were delivered shall, upon written demand made by the person who
  109  produced them, return them to that person, unless the materials
  110  produced were copies rather than originals.
  111         (h)A subpoena issued under paragraph (a) for an
  112  unregistered sex offender may require production as soon as
  113  possible, but must allow the recipient at least 24 hours after
  114  service of the subpoena to produce.
  115         (2) SERVICE.—A subpoena issued under subsection (1) may be
  116  served by any person who is at least 18 years of age and
  117  designated in the subpoena to serve it. Service upon an
  118  individual may be made by personal delivery. Service may be made
  119  on a domestic or foreign corporation or on a partnership or
  120  other unincorporated association that is subject to suit under a
  121  common name by delivering the subpoena to an officer, a managing
  122  or general agent, or any other agent authorized by appointment
  123  or by law to receive service of process. The affidavit of the
  124  person serving the subpoena entered on a true copy of the
  125  subpoena is proof of service.
  126         (3) ENFORCEMENT.—In the case of contumacy by or refusal to
  127  comply with a subpoena, the law enforcement agency that issued
  128  the subpoena may petition a court that has jurisdiction of the
  129  investigation or over the person subpoenaed, or in which he or
  130  she conducts business or may be found, to compel compliance. The
  131  court may issue an order requiring the subpoenaed person to
  132  appear before the law enforcement agency to produce records or
  133  to give testimony concerning the production and authentication
  134  of such records. Any failure to obey the order of the court may
  135  be punished by the court as contempt. All process in any such
  136  case may be served in any judicial district in which such person
  137  is located.
  138         (4) IMMUNITY FROM CIVIL LIABILITY.—Notwithstanding any
  139  other law, a person subpoenaed under this section who complies
  140  in good faith with the subpoena and produces the materials
  141  sought is not liable in any court within the state to any
  142  customer or other person for such production or for
  143  nondisclosure of that production.
  145         (a) Nondisclosure order.
  146         1. If a recipient of a subpoena under this section wishes
  147  to have a court review a nondisclosure requirement imposed in
  148  connection with the subpoena, the recipient may notify the law
  149  enforcement agency or file a petition for judicial review with
  150  the issuing court.
  151         2. No later than 30 days after the date of receipt of a
  152  notification under subparagraph 1., the law enforcement agency
  153  shall apply for an order prohibiting the disclosure of the
  154  existence or contents of the relevant subpoena. An application
  155  under this subparagraph may be filed with the district court of
  156  appeal for the judicial district in which the recipient of the
  157  subpoena is doing business or with the district court of appeal
  158  for any judicial district within which the authorized
  159  investigation that is the basis for the subpoena is being
  160  conducted. The applicable nondisclosure requirement shall remain
  161  in effect during the pendency of any related proceeding.
  162         3. A district court of appeal that receives a petition
  163  under subparagraph 1. or an application under subparagraph 2.
  164  must rule expeditiously, and shall, in accordance with paragraph
  165  (c), issue a nondisclosure order that includes conditions
  166  appropriate to the circumstances.
  167         (b) Application contents.—An application for a
  168  nondisclosure order, or an extension thereof, or a response to a
  169  petition must include the certification required under
  170  subparagraph (1)(e)1.
  171         (c) Standard.—A district court of appeal shall issue a
  172  nondisclosure order, or an extension thereof, under this
  173  subsection if the court determines that there is reason to
  174  believe that disclosure of the information subject to the
  175  nondisclosure requirement during the applicable time period may
  176  result in:
  177         1. Endangering the life or physical safety of an
  178  individual;
  179         2. Flight from prosecution;
  180         3. Destruction of or tampering with evidence;
  181         4. Intimidation of potential witnesses; or
  182         5. Seriously jeopardizing an investigation or unduly
  183  delaying a trial.
  184         (d) Extension.—Upon a showing that a circumstance described
  185  in any of subparagraphs (c)1.-(c)5. continues to exist, a
  186  district court of appeal may issue an ex parte order extending a
  187  nondisclosure order imposed under this subsection for additional
  188  180-day periods or, if the court determines that the
  189  circumstances necessitate a longer period of nondisclosure, for
  190  additional periods that are longer than 180 days.
  191         (e) Closed hearings.—In all proceedings under this
  192  subsection, subject to any right to an open hearing in a
  193  contempt proceeding, the court shall close any hearing to the
  194  extent necessary to prevent the unauthorized disclosure of a
  195  request for records, a report, or other information made to any
  196  person or entity under this section. Petitions, filings,
  197  records, orders, certifications, and subpoenas must be kept
  198  under seal to the extent and length of time necessary to prevent
  199  the unauthorized disclosure of a subpoena under this section.
  201  ================= T I T L E  A M E N D M E N T ================
  202  And the title is amended as follows:
  203         Delete line 156
  204  and insert:
  205         An act relating to exploitation and abuse; creating s.
  206         775.211, F.S.; authorizing a law enforcement agency to
  207         issue and serve a subpoena in an investigation of an
  208         offense involving the sexual exploitation or abuse of
  209         a child, an offense involving an unregistered sex
  210         offender, or other specified offenses; specifying and
  211         limiting the scope of production under the subpoena;
  212         defining the term “sex offender”; requiring the
  213         payment of fees and mileage to a subpoenaed witness;
  214         authorizing a person who is the subject of a summons
  215         to petition for an order modifying or setting aside
  216         the summons or a prohibition on disclosure
  217         accompanying the summons; prohibiting the recipient of
  218         a subpoena from disclosing its contents to another
  219         person under certain circumstances; providing
  220         exceptions; specifying requirements regarding the
  221         nondisclosure of information; providing that
  222         nondisclosure requirements are subject to judicial
  223         review and that subpoenas issued under a nondisclosure
  224         certification must include notice of the availability
  225         of judicial review; requiring the return of produced
  226         records under certain circumstances; requiring that
  227         certain recipients of such a subpoena be allowed at
  228         least a specified amount of time to produce records;
  229         specifying requirements for service of the subpoena;
  230         authorizing the issuer of the subpoena to seek
  231         enforcement of the subpoena in a court of competent
  232         jurisdiction; authorizing a court to punish
  233         noncompliance with an order as contempt; providing
  234         immunity from liability for the good faith compliance
  235         with such a subpoena; specifying the procedure for
  236         filing for judicial review of a nondisclosure
  237         requirement imposed in connection with a subpoena;
  238         requiring the law enforcement agency to apply for a
  239         nondisclosure order within a specified timeframe after
  240         receipt of notification of a filing for judicial
  241         review; requiring a district court of appeal to rule
  242         expeditiously on such filing; requiring an application
  243         for a nondisclosure order to include the law
  244         enforcement agency’s certification as to possible
  245         results of disclosure; requiring the district court of
  246         appeal to issue a nondisclosure order, or an extension
  247         thereof, under certain circumstances; specifying
  248         circumstances under which a district court of appeal
  249         may issue an extension for a specified period;
  250         requiring a court to close any hearing and seal
  251         records to prevent the disclosure of specified
  252         information or records;