Florida Senate - 2018                        COMMITTEE AMENDMENT
       Bill No. CS for CS for SB 1256
       
       
       
       
       
       
                                Ì6540946Î654094                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                   Comm: RS            .                                
                  02/26/2018           .                                
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       The Committee on Rules (Brandes) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Between lines 187 and 188
    4  insert:
    5         Section 4. Section 934.23, Florida Statutes, is amended to
    6  read:
    7         934.23 Required disclosure of customer communications or
    8  records.—
    9         (1)As used in this section, the term:
   10         (a)“A court of competent jurisdiction” means a court that
   11  has jurisdiction over the investigation or that is otherwise
   12  authorized by law.
   13         (b)“Investigative or law enforcement officer” has the same
   14  meaning as s. 934.02(6), except that in any investigation
   15  relating to whether a crime has been or is being committed only
   16  a state attorney, an assistant state attorney, the statewide
   17  prosecutor, or an assistant statewide prosecutor may seek under
   18  this section the disclosure of a wire or electronic
   19  communication, including the contents of such communication, and
   20  any record or other information pertaining to a subscriber or
   21  customer of a provider of electronic communication service or
   22  provider of remote computing service.
   23         (2)(1) An investigative or law enforcement officer may
   24  require the disclosure by a provider of electronic communication
   25  service or remote computing service of the contents of a wire or
   26  electronic communication that has been in electronic storage in
   27  an electronic communications system for 180 days or less only
   28  pursuant to a warrant issued by the judge of a court of
   29  competent jurisdiction. As used in this section, the term “a
   30  court of competent jurisdiction” means a court that has
   31  jurisdiction over the investigation or that is otherwise
   32  authorized by law. An investigative or law enforcement officer
   33  may require the disclosure by a provider of electronic
   34  communication services of the contents of a wire or electronic
   35  communication that has been in electronic storage in an
   36  electronic communications system for more than 180 days by the
   37  means available under subsection (3) (2).
   38         (2) An investigative or law enforcement officer may require
   39  a provider of remote computing service to disclose the contents
   40  of any wire or electronic communication to which this subsection
   41  is made applicable by subsection (3):
   42         (a) Without required notice to the subscriber or customer
   43  if the investigative or law enforcement officer obtains a
   44  warrant issued by the judge of a court of competent
   45  jurisdiction; or
   46         (b) With prior notice, or with delayed notice pursuant to
   47  s. 934.25, from the investigative or law enforcement officer to
   48  the subscriber or customer if the investigative or law
   49  enforcement officer:
   50         1. Uses a subpoena; or
   51         2. Obtains a court order for such disclosure under
   52  subsection (5).
   53         (3) Subsection (2) is applicable with respect to any
   54  electronic communication that is held or maintained on a remote
   55  computing service:
   56         (a) On behalf of a subscriber or customer of such service
   57  and received by means of electronic transmission from, or
   58  created by means of computer processing of communications
   59  received by means of electronic transmission from, a subscriber
   60  or customer of such service.
   61         (b) Solely for the purposes of providing storage or
   62  computer processing services to a subscriber or customer, if the
   63  provider is not authorized to access the contents of any such
   64  communication for purposes of providing any service other than
   65  storage or computer processing.
   66         (4)(a) An investigative or law enforcement officer may
   67  require a provider of electronic communication service or remote
   68  computing service to disclose a record or other information
   69  pertaining to a subscriber or customer of such service, not
   70  including the contents of a communication, only when the
   71  investigative or law enforcement officer:
   72         1. Obtains a warrant issued by the judge of a court of
   73  competent jurisdiction;
   74         2. Obtains a court order for such disclosure under
   75  subsection (5);
   76         3. Has the consent of the subscriber or customer to such
   77  disclosure; or
   78         4. Seeks information under paragraph (b).
   79         (b) A provider of electronic communication service or
   80  remote computing service shall disclose to an investigative or
   81  law enforcement officer the name; address; local and long
   82  distance telephone connection records, or records of session
   83  times or durations; length of service, including the starting
   84  date of service; types of services used; telephone or instrument
   85  number or other subscriber number or identity, including any
   86  temporarily assigned network address; and means and source of
   87  payment, including any credit card or bank account number of a
   88  subscriber to or customer of such service when the governmental
   89  entity uses a subpoena or obtains such information in the manner
   90  specified in paragraph (a) for obtaining information under that
   91  paragraph.
   92         (c) An investigative or law enforcement officer who
   93  receives records or information under this subsection is not
   94  required to provide notice to a subscriber or customer.
   95         (5) A court order for disclosure under subsection (2),
   96  subsection (3), or subsection (4) shall issue only if the
   97  investigative or law enforcement officer offers specific and
   98  articulable facts showing that there are reasonable grounds to
   99  believe that a record or other information pertaining to a
  100  subscriber or customer of an electronic communication service or
  101  remote computing service the contents of a wire or electronic
  102  communication or the records of other information sought are
  103  relevant and material to an ongoing criminal investigation. A
  104  court issuing an order pursuant to this section, on a motion
  105  made promptly by the service provider, may quash or modify such
  106  order if the information or records requested are unusually
  107  voluminous in nature or compliance with such order otherwise
  108  would cause an undue burden on such provider.
  109         (6) No cause of action shall lie in any court against any
  110  provider of wire or electronic communication service, its
  111  officers, employees, agents, or other specified persons for
  112  providing information, facilities, or assistance in accordance
  113  with the terms of a court order, warrant, subpoena, or
  114  certification under ss. 934.21-934.28.
  115         (7)(a) A provider of wire or electronic communication
  116  services or a remote computing service, upon the request of an
  117  investigative or law enforcement officer, shall take all
  118  necessary steps to preserve records and other evidence in its
  119  possession pending the issuance of a court order or other
  120  process.
  121         (b) Records referred to in paragraph (a) shall be retained
  122  for a period of 90 days, which shall be extended for an
  123  additional 90 days upon a renewed request by an investigative or
  124  law enforcement officer.
  125         (8) A provider of electronic communication service, a
  126  remote computing service, or any other person who furnished
  127  assistance pursuant to this section shall be held harmless from
  128  any claim and civil liability resulting from the disclosure of
  129  information pursuant to this section and shall be reasonably
  130  compensated for reasonable expenses incurred in providing such
  131  assistance.
  132         Section 5. Section 934.24, Florida Statutes is repealed.
  133         Section 6. Section 934.25, Florida Statutes, is amended to
  134  read:
  135         934.25 Nondisclosure by service provider Delayed notice.—
  136         (1) An investigative or law enforcement officer acting
  137  under s. 934.23(2) may:
  138         (a) Where a court order is sought, include in the
  139  application a request for an order delaying the notification
  140  required under s. 934.23(2) for a period not to exceed 90 days,
  141  which request the court shall grant if it determines that there
  142  is reason to believe that notification of the existence of the
  143  court order may have an adverse result described in subsection
  144  (2).
  145         (b) Where a subpoena is obtained, delay the notification
  146  required under s. 934.23(2) for a period not to exceed 90 days
  147  upon the execution of a written certification of a supervisory
  148  official that there is reason to believe that notification of
  149  the existence of the subpoena may have an adverse result
  150  described in subsection (2).
  151         (2) Any of the following acts constitute an adverse result
  152  for purposes of subsection (1):
  153         (a) Endangering the life or physical safety of an
  154  individual.
  155         (b) Fleeing from prosecution.
  156         (c) Destroying or tampering with evidence.
  157         (d) Intimidating potential witnesses.
  158         (e) Seriously jeopardizing an investigation or unduly
  159  delaying a trial.
  160         (3) The investigative or law enforcement officer shall
  161  maintain a true copy of a certification obtained under paragraph
  162  (1)(b).
  163         (4) Extensions of the delay of notification provided in s.
  164  934.23(2) of up to 90 days each may be granted by the court upon
  165  application, or by certification by an investigative or law
  166  enforcement officer, but only in accordance with subsection (6).
  167         (5) Upon the expiration of the period of delay of
  168  notification under subsection (1) or subsection (4), the
  169  investigative or law enforcement officer must serve upon or
  170  deliver by registered or first-class mail to the subscriber or
  171  customer a copy of the process or request together with notice
  172  which:
  173         (a) States with reasonable specificity the nature of the
  174  law enforcement inquiry, and
  175         (b) Informs the subscriber or customer:
  176         1. That information maintained for such subscriber or
  177  customer by the service provider named in the process or request
  178  was supplied to or requested by the investigative or law
  179  enforcement officer and the date on which such information was
  180  so supplied or requested.
  181         2. That notification of such subscriber or customer was
  182  delayed.
  183         3. What investigative or law enforcement officer or what
  184  court made the certification or determination pursuant to which
  185  that delay was made.
  186         4. Which provision of ss. 934.21-934.28 allowed such delay.
  187         (1)(6) An investigative or law enforcement officer acting
  188  under s. 934.23, when not required to notify the subscriber or
  189  customer under s. 934.23(2)(a), or to the extent that such
  190  notice may be delayed pursuant to subsection (1), may apply to a
  191  court for an order commanding a provider of electronic
  192  communication service or remote computing service to whom a
  193  warrant, subpoena, or court order is directed, for such period
  194  as the court deems appropriate, not to notify any other person
  195  of the existence of such warrant, subpoena, or court order. The
  196  court shall enter such order if it determines that there is
  197  reason to believe that notification of the existence of the
  198  warrant, subpoena, or court order will result in an adverse
  199  result. any of the following:
  200         (2)For purposes of this section, an “adverse result” means
  201  any of the following acts:
  202         (a) Endangering the life or physical safety of an
  203  individual.
  204         (b) Fleeing from prosecution.
  205         (c) Destroying or tampering with evidence.
  206         (d) Intimidating potential witnesses.
  207         (e) Seriously jeopardizing an investigation or unduly
  208  delaying a trial.
  209         (7) As used in paragraph (1)(b), the term “supervisory
  210  official” means the person in charge of an investigating or law
  211  enforcement agency’s or entity’s headquarters or regional
  212  office; the state attorney of the circuit from which the subject
  213  subpoena has been issued; the statewide prosecutor; or an
  214  assistant state attorney or assistant statewide prosecutor
  215  specifically designated by the state attorney or statewide
  216  prosecutor to make such written certification.
  217         (8) As used in subsection (5), the term “deliver” shall be
  218  construed in accordance with the definition of “delivery” as
  219  provided in Rule 1.080, Florida Rules of Civil Procedure.
  220         Section 7. Section 934.255, Florida Statutes, is created to
  221  read:
  222         934.255 Subpoenas in investigations of sexual offenses.—
  223         (1) As used in this section, the term:
  224         (a) “Adverse result” means any of the following acts:
  225         1. Endangering the life or physical safety of an
  226  individual.
  227         2. Fleeing from prosecution.
  228         3. Destroying or tampering with evidence.
  229         4. Intimidating potential witnesses.
  230         5. Seriously jeopardizing an investigation or unduly
  231  delaying a trial.
  232         (b) “Child” means a person under 18 years of age.
  233         (c)“Investigative or law enforcement officer” has the same
  234  meaning as s. 934.02(6), except that in any investigation
  235  relating to whether a crime has been or is being committed only
  236  a state attorney, an assistant state attorney, the statewide
  237  prosecutor, or an assistant statewide prosecutor may seek
  238  through use of a subpoena the information described in
  239  paragraphs (2)(a) and (2)(b).
  240         (d) “Sexual abuse of a child” means a criminal offense
  241  based on any conduct described in s. 39.01(71).
  242         (e) “Supervisory official” means the person in charge of an
  243  investigating or law enforcement agency’s or entity’s
  244  headquarters or regional office; the state attorney of the
  245  circuit from which the subpoena has been issued; the statewide
  246  prosecutor; or an assistant state attorney or assistant
  247  statewide prosecutor specifically designated by the state
  248  attorney or statewide prosecutor to make such written
  249  certification.
  250         (2) An investigative or law enforcement officer who is
  251  conducting an investigation into:
  252         (a) Allegations of the sexual abuse of a child or an
  253  individual’s suspected commission of a crime listed in s.
  254  943.0435(1)(h)1.a.(I) may use a subpoena to compel the
  255  production of records, documents, or other tangible objects and
  256  the testimony of the subpoena recipient concerning the
  257  production and authenticity of such records, documents, or
  258  objects, except as provided in paragraph (b).
  259         (b) Allegations of the sexual abuse of a child may use a
  260  subpoena to require a provider of electronic communication
  261  services or remote computing services to disclose a record or
  262  other information pertaining to a subscriber or customer of such
  263  service as described in s. 934.23(4)(b).
  264         (c) A subpoena issued under paragraph (a) must describe the
  265  records, documents, or other tangible objects required to be
  266  produced, and must prescribe a date by which such records,
  267  documents, or other tangible objects must be produced.
  268         (3) At any time before the date prescribed in a subpoena
  269  issued under subsection (2)(a) for production of records,
  270  documents, or other tangible objects or the date prescribed in a
  271  subpoena issued under subsection (2)(b) for production of a
  272  record or other information, a person or entity receiving such
  273  subpoena may, before a judge of competent jurisdiction, petition
  274  for an order modifying or setting aside the prohibition of
  275  disclosure issued under subsection (5).
  276         (4) An investigative or law enforcement officer who uses a
  277  subpoena issued under paragraph (2)(a) to obtain any record,
  278  document, or other tangible object may retain such items for use
  279  in any ongoing criminal investigation or a closed investigation
  280  with the intent that the investigation may later be reopened.
  281         (5)(a) If a subpoena issued under subsection (2) is served
  282  upon a recipient and accompanied by a written certification of a
  283  supervisory official that there is reason to believe that
  284  notification of the existence of the subpoena may have an
  285  adverse result, the subpoena recipient is prohibited from
  286  disclosing to any person for a period of 180 days the existence
  287  of the subpoena.
  288         (b) A recipient of a subpoena issued under subsection (2)
  289  that is accompanied by a written certification issued pursuant
  290  to this subsection is authorized to disclose information
  291  otherwise subject to any applicable nondisclosure requirement to
  292  persons as is necessary to comply with the subpoena, to an
  293  attorney in order to obtain legal advice or assistance regarding
  294  compliance with the subpoena, or to any other person as allowed
  295  and specifically authorized by the investigative or law
  296  enforcement officer who obtained the subpoena or the supervisory
  297  official who issued the written certification. The subpoena
  298  recipient shall notify any person to whom disclosure of the
  299  subpoena is made pursuant to this paragraph of the existence of,
  300  and length of time associated with, the nondisclosure
  301  requirement.
  302         (c) A person to whom disclosure of the subpoena is made
  303  under paragraph (a) is subject to the nondisclosure requirements
  304  of this subsection in the same manner as the subpoena recipient.
  305         (d) At the request of the investigative or law enforcement
  306  officer who obtained the subpoena or the supervisory official
  307  who issued the written certification, the subpoena recipient
  308  shall identify to the investigative or law enforcement officer
  309  or supervisory official, before or at the time of compliance
  310  with the subpoena, the name of any person to whom disclosure was
  311  made under paragraph (b). If the investigative or law
  312  enforcement officer or supervisory official makes such a
  313  request, the subpoena recipient has an ongoing duty to disclose
  314  the identity of any individuals notified of the subpoena’s
  315  existence throughout the nondisclosure period.
  316         (e) The investigative or law enforcement officer shall
  317  maintain a true copy of a written certification obtained under
  318  this subsection.
  319         (6) An investigative or law enforcement officer acting
  320  under paragraph (2)(b) may apply to a court for an order
  321  extending the nondisclosure period provided in subsection (5)
  322  for a subpoena and commanding a provider of electronic
  323  communication service or remote computing service to whom the
  324  subpoena is directed, for such period as the court deems
  325  appropriate, not to notify any other person of the existence of
  326  such subpoena. The court shall enter such order if it determines
  327  that there is reason to believe that notification of the
  328  existence of the subpoena will result in an adverse result.
  329         (7) In the case of contumacy by a person served a subpoena
  330  issued under subsection (2), or his or her refusal to comply
  331  with such a subpoena, the investigative or law enforcement
  332  officer who sought the subpoena may petition a court of
  333  competent jurisdiction to compel compliance. The court may
  334  address the matter as indirect criminal contempt pursuant to
  335  Rule 3.840 of the Florida Rules of Criminal Procedure. Any
  336  prohibited disclosure of a subpoena issued under subsection (2)
  337  for which a period of prohibition of disclosure provided in
  338  subsection (5) or an extension thereof under subsection (6) is
  339  in effect is punishable as provided in s. 934.43. However,
  340  limited disclosure is authorized as provided in subsection (5).
  341         (8) No cause of action shall lie in any court against any
  342  provider of wire or electronic communication service, its
  343  officers, employees, agents, or other specified persons for
  344  providing information, facilities, or assistance in accordance
  345  with the terms of a subpoena under this section.
  346         (9)(a) A provider of wire or electronic communication
  347  services or a remote computing service, upon the request of an
  348  investigative or law enforcement officer, shall take all
  349  necessary steps to preserve records and other evidence in its
  350  possession pending the issuance of a court order or other
  351  process.
  352         (b) Records referred to in paragraph (a) shall be retained
  353  for a period of 90 days, which shall be extended for an
  354  additional 90 days upon a renewed request by an investigative or
  355  law enforcement officer.
  356         (10) A provider of electronic communication service, a
  357  remote computing service, or any other person who furnished
  358  assistance pursuant to this section shall be held harmless from
  359  any claim and civil liability resulting from the disclosure of
  360  information pursuant to this section and shall be reasonably
  361  compensated for reasonable expenses incurred in providing such
  362  assistance. A witness who is subpoenaed to appear to testify
  363  under subsection (2) and who complies with the subpoena must be
  364  paid the same fees and mileage rate paid to a witness appearing
  365  before a court of competent jurisdiction in this state.
  366  
  367  ================= T I T L E  A M E N D M E N T ================
  368  And the title is amended as follows:
  369         Delete lines 2 - 12
  370  and insert:
  371         An act relating to security of communications;
  372         amending s. 934.01, F.S.; revising and providing
  373         legislative findings; amending s. 934.02, F.S.;
  374         redefining the term “oral communication”; defining the
  375         terms “microphone-enabled household device” and
  376         “portable electronic communication device”; amending
  377         s. 934.21, F.S.; revising the exceptions to conduct
  378         that constitutes unlawful access to stored
  379         communications; amending s. 934.23, F.S.; defining
  380         “investigative or law enforcement officer” and
  381         specifying that an exception to such definition is
  382         that in any criminal investigation only a prosecutor
  383         may obtain disclosure of a stored communications
  384         through specified legal process; requiring a warrant
  385         for any content of a stored communications; deleting
  386         provisions relating to obtaining content of stored
  387         communications, with required subscriber notice, by
  388         obtaining a court order for disclosure or using a
  389         subpoena; deleting provisions relating to any
  390         electronic communication held or maintained in a
  391         remote computing service; deleting a provision on not
  392         providing notice applicable to a subpoena for basic
  393         subscriber information; repealing s. 934.24, F.S.;
  394         deleting provisions relating to backup protection for
  395         content of stored communication obtained, with prior
  396         subscriber notice, by court order for disclosure or
  397         subpoena; deleting provisions authorizing a subscriber
  398         to seek a court order to quash such subpoena or vacate
  399         such court order for disclosure; amending 934.25,
  400         F.S., deleting provisions relating to delaying
  401         subscriber notice when such notice is required for
  402         obtaining contents of stored communications pursuant
  403         to a court order for disclosure or subpoena; deleting
  404         reference to subscriber notice or delay of such notice
  405         in provisions relating to nondisclosure of a warrant,
  406         court order, or subpoena for stored communications;
  407         creating s. 934.255, F.S.; defining “adverse result,”
  408         “child,” “investigative or law enforcement officer,”
  409         “sexual abuse of child,” and “supervisory official”;
  410         specifying that an exception to the definition of
  411         “investigative or law enforcement officer” is that in
  412         any criminal investigation only a prosecutor may use a
  413         subpoena to obtain disclosure of basic subscriber
  414         information relevant to stored communications;
  415         authorizing an investigative or law enforcement
  416         officer conducting an investigation into specified
  417         matters to subpoena certain persons or entities for
  418         the production of records, documents, or other
  419         tangible things and testimony for stored
  420         communications, excluding basic subscriber information
  421         relevant to stored communications; authorizing an
  422         investigative or law enforcement officer conducting an
  423         investigation into specified matters to subpoena
  424         certain person or entities for basic subscriber
  425         information relevant to stored communications;
  426         specifying requirements for the issuance of a
  427         subpoena; authorizing a subpoenaed person to petition
  428         a court for an order modifying or setting aside a
  429         prohibition on disclosure; authorizing, under certain
  430         circumstances, an investigative or law enforcement
  431         officer to retain subpoenaed records, documents, or
  432         other tangible objects; prohibiting the disclosure of
  433         a subpoena for a specified period if the disclosure
  434         might result in an adverse result; providing
  435         exceptions; requiring an investigative or law
  436         enforcement officer to maintain a true copy of a
  437         written certification required for nondisclosure;
  438         authorizing an investigative or law enforcement
  439         officer to apply to a court for an order prohibiting
  440         certain entities from notifying any person of the
  441         existence of a subpoena under certain circumstances;
  442         authorizing an investigative or law enforcement
  443         officer to petition a court to compel compliance with
  444         a subpoena; authorizing a court to punish a person who
  445         does not comply with a subpoena as indirect criminal
  446         contempt; providing criminal penalties; precluding a
  447         cause of action against certain entities or persons
  448         for providing information, facilities, or assistance
  449         in accordance with terms of a subpoena; providing for
  450         preservation of evidence pending issuance of legal
  451         process; providing that certain entities or persons
  452         shall be held harmless from any claim and civil
  453         liability resulting from disclosure of specified
  454         information; providing for reasonable compensation for
  455         reasonable expenses incurred in providing assistance;
  456         requiring that a subpoenaed witness be paid certain
  457         fees and mileage;