Florida Senate - 2018                       CS for CS for SB 618
       
       
        
       By the Committees on Judiciary; and Criminal Justice; and
       Senators Baxley, Steube, Book, Rouson, and Mayfield
       
       
       
       
       590-02183-18                                           2018618c2
    1                        A bill to be entitled                      
    2         An act relating to subpoenas in investigations of
    3         sexual offenses; creating s. 934.255, F.S.; defining
    4         terms; authorizing an investigative or law enforcement
    5         officer conducting an investigation into specified
    6         matters to subpoena certain persons or entities for
    7         the production of records, documents, or other
    8         tangible things and testimony; specifying requirements
    9         for the issuance of a subpoena; authorizing a
   10         subpoenaed person to petition a court for an order
   11         modifying or setting aside the subpoena or a
   12         prohibition on disclosure; authorizing an
   13         investigative or law enforcement officer to retain
   14         subpoenaed records, documents, or other tangible
   15         objects under certain circumstances; prohibiting the
   16         disclosure of a subpoena for a specified period if the
   17         disclosure might result in an adverse result;
   18         providing exceptions; specifying the acts that
   19         constitute an adverse result; requiring the
   20         investigative or law enforcement officer to maintain a
   21         true copy of a written certification; authorizing a
   22         court to grant extension of certain periods under
   23         certain circumstances; requiring an investigative or
   24         law enforcement officer to serve or deliver a copy of
   25         the process along with specified information upon the
   26         expiration of a nondisclosure period or delay of
   27         notification; authorizing an investigative or law
   28         enforcement officer to apply to a court for an order
   29         prohibiting certain entities from notifying any person
   30         of the existence of a subpoena under certain
   31         circumstances; authorizing an investigative or law
   32         enforcement officer to petition a court to compel
   33         compliance; authorizing a court to punish a person who
   34         does not comply with a subpoena as indirect criminal
   35         contempt; providing criminal penalties; precluding a
   36         cause of action against certain entities or persons
   37         for providing information, facilities, or assistance
   38         in accordance with terms of a subpoena; providing for
   39         preservation of evidence pending issuance of process;
   40         providing that certain entities or persons shall be
   41         held harmless from any claim and civil liability
   42         resulting from disclosure of specified information;
   43         providing for reasonable compensation for reasonable
   44         expenses incurred in providing assistance; requiring
   45         that a subpoenaed witness be paid certain fees and
   46         mileage; providing an effective date.
   47          
   48  Be It Enacted by the Legislature of the State of Florida:
   49  
   50         Section 1. Section 934.255, Florida Statutes, is created to
   51  read:
   52         934.255 Subpoenas in investigations of sexual offenses.—
   53         (1) As used in this section, the term:
   54         (a) “Child” means a person under 18 years of age.
   55         (b) “Deliver” is construed in accordance with completed
   56  delivery, as provided for in Rule 1.080(b) of the Florida Rules
   57  of Civil Procedure.
   58         (c) “Sexual abuse of a child” means a criminal offense
   59  based on any conduct described in s. 39.01(71).
   60         (d) “Supervisory official” means the person in charge of an
   61  investigating or law enforcement agency’s or entity’s
   62  headquarters or regional office; the state attorney of the
   63  circuit from which the subpoena has been issued; the statewide
   64  prosecutor; or an assistant state attorney or assistant
   65  statewide prosecutor specifically designated by the state
   66  attorney or statewide prosecutor to make such written
   67  certification.
   68         (2) An investigative or law enforcement officer who is
   69  conducting an investigation into:
   70         (a) Allegations of the sexual abuse of a child or an
   71  individual’s suspected commission of a crime listed in s.
   72  943.0435(1)(h)1.a.(I) may use a subpoena to compel the
   73  production of records, documents, or other tangible objects and
   74  the testimony of the subpoena recipient concerning the
   75  production and authenticity of such records, documents, or
   76  objects, except as provided in paragraphs (b) and (c).
   77         (b) Allegations of the sexual abuse of a child may use a
   78  subpoena to require a provider of electronic communication
   79  services or remote computing services to disclose a record or
   80  other information pertaining to a subscriber or customer of such
   81  service as described in 934.23(4)(b), not including the contents
   82  of a communication. An investigative or law enforcement officer
   83  who receives records or information from a provider of
   84  electronic communication services or remote computing services
   85  under this paragraph is not required to provide notice to a
   86  subscriber or customer of that provider.
   87         (c) Allegations of the sexual abuse of a child may use a
   88  subpoena to require a provider of remote computing services to
   89  disclose the contents of any wire or electronic communication
   90  that has been in electronic storage in an electronic
   91  communications system for more than 180 days and to which this
   92  paragraph is made applicable by paragraph (d), with prior
   93  notice, or with delayed notice pursuant to subsection (6), from
   94  the investigative or law enforcement officer to the subscriber
   95  or customer.
   96         (d) Paragraph (c) applies to any electronic communication
   97  that is held or maintained on a remote computing service:
   98         1. On behalf of a subscriber or customer of such service
   99  and received by means of electronic transmission from, or
  100  created by means of computer processing of communications
  101  received by means of electronic transmission from, a subscriber
  102  or customer of such service.
  103         2. Solely for the purposes of providing storage or computer
  104  processing services to a subscriber or customer, if the provider
  105  is not authorized to access the contents of any such
  106  communication for purposes of providing any service other than
  107  storage or computer processing.
  108  
  109  A subpoena issued under this subsection must describe the
  110  records, documents, or other tangible objects required to be
  111  produced, and must prescribe a date by which such records,
  112  documents, or other tangible objects must be produced.
  113         (3) At any time before the date prescribed in the subpoena
  114  by which records, documents, or other tangible objects must be
  115  produced, a person or entity receiving a subpoena issued
  116  pursuant to subsection (2) may, before a judge of competent
  117  jurisdiction, petition for an order modifying or setting aside
  118  the subpoena or a prohibition of disclosure issued under
  119  subsection (5) or subsection (9).
  120         (4) An investigative or law enforcement officer who uses a
  121  subpoena issued under subsection (2) to obtain any record,
  122  document, or other tangible object may retain such items for use
  123  in any ongoing criminal investigation or a closed investigation
  124  with the intent that the investigation may later be reopened.
  125         (5) If a subpoena issued under subsection (2) is served
  126  upon a recipient and accompanied by a written certification of a
  127  supervisory official that there is reason to believe that
  128  notification of the existence of the subpoena may have an
  129  adverse result, as described in subsection (7), the subpoena
  130  recipient is prohibited from disclosing to any person for a
  131  period of 180 days the existence of the subpoena.
  132         (a) A recipient of a subpoena issued under subsection (2)
  133  that is accompanied by a written certification issued pursuant
  134  to this subsection is authorized to disclose information
  135  otherwise subject to any applicable nondisclosure requirement to
  136  persons as is necessary to comply with the subpoena, to an
  137  attorney in order to obtain legal advice or assistance regarding
  138  compliance with the subpoena, or to any other person as allowed
  139  and specifically authorized by the investigative or law
  140  enforcement officer who obtained the subpoena or the supervisory
  141  official who issued the written certification. The subpoena
  142  recipient shall notify any person to whom disclosure of the
  143  subpoena is made pursuant to this paragraph of the existence of,
  144  and length of time associated with, the nondisclosure
  145  requirement.
  146         (b) A person to whom disclosure of the subpoena is made
  147  under paragraph (a) is subject to the nondisclosure requirements
  148  of this subsection in the same manner as the subpoena recipient.
  149         (c) At the request of the investigative or law enforcement
  150  officer who obtained the subpoena or the supervisory official
  151  who issued the written certification, the subpoena recipient
  152  shall identify to the investigative or law enforcement officer
  153  or supervisory official, before or at the time of compliance
  154  with the subpoena, the name of any person to whom disclosure was
  155  made under paragraph (a). If the investigative or law
  156  enforcement officer or supervisory official makes such a
  157  request, the subpoena recipient has an ongoing duty to disclose
  158  the identity of any individuals notified of the subpoena’s
  159  existence throughout the nondisclosure period.
  160         (6) An investigative or law enforcement officer who obtains
  161  a subpoena pursuant to paragraph (2)(c) may delay the
  162  notification required under that paragraph for a period not to
  163  exceed 180 days upon the execution of a written certification of
  164  a supervisory official that there is reason to believe that that
  165  notification of the existence of the subpoena may have an
  166  adverse result described in subsection (7).
  167         (7) Any of the following acts constitute an adverse result:
  168         (a) Endangering the life or physical safety of an
  169  individual.
  170         (b) Fleeing from prosecution.
  171         (c) Destroying or tampering with evidence.
  172         (d) Intimidating potential witnesses.
  173         (e) Seriously jeopardizing an investigation or unduly
  174  delaying a trial.
  175         (8) The investigative or law enforcement officer shall
  176  maintain a true copy of a written certification obtained under
  177  subsection (5) or subsection (6).
  178         (9) The court may grant extensions of the nondisclosure
  179  period provided in subsection (5) or the delay of notification
  180  provided in subsection (6) of up to 90 days each upon
  181  application by an investigative or law enforcement officer, but
  182  only in accordance with subsection (11).
  183         (10) Upon the expiration of the period of delay of
  184  notification in subsection (6) or subsection (9), an
  185  investigative or law enforcement officer who receives records or
  186  information pursuant to a subpoena issued under paragraph (2)(c)
  187  must serve upon or deliver by registered or first-class mail to
  188  the subscriber or customer a copy of the process or request,
  189  together with notice that:
  190         (a) States with reasonable specificity the nature of the
  191  law enforcement inquiry; and
  192         (b) Informs the subscriber or customer of all of the
  193  following:
  194         1. That information maintained for such subscriber or
  195  customer by the service provider named in the process or request
  196  was supplied to or requested by the investigative or law
  197  enforcement officer and the date on which such information was
  198  so supplied or requested.
  199         2. That notification of such subscriber or customer was
  200  delayed.
  201         3. What investigative or law enforcement officer or what
  202  court made the written certification or determination pursuant
  203  to which that delay was made.
  204         4. Which provision of ss. 934.21-934.28 allowed such a
  205  delay.
  206         (11) An investigative or law enforcement officer acting
  207  under paragraph (2)(b), when not required to notify the
  208  subscriber or customer, or to the extent that such notice may be
  209  delayed pursuant to subsection (6), may apply to a court for an
  210  order prohibiting a provider of electronic communication
  211  services or remote computing services to whom the subpoena is
  212  directed, for such period as the court deems appropriate, from
  213  notifying any other person of the existence of such subpoena
  214  except as specifically authorized in subsection (5). The court
  215  shall enter such order if it determines that there is reason to
  216  believe that notification of the existence of the subpoena will
  217  result in an adverse result, as specified under subsection (7).
  218         (12) In the case of contumacy by a person served a subpoena
  219  issued under subsection (2), or his or her refusal to comply
  220  with such a subpoena, the investigative or law enforcement
  221  officer who sought the subpoena may petition a court of
  222  competent jurisdiction to compel compliance. The court may
  223  address the matter as indirect criminal contempt pursuant to
  224  Rule 3.840 of the Florida Rules of Criminal Procedure. Any
  225  prohibited disclosure of a subpoena issued under subsection (2)
  226  for which a period of prohibition of disclosure provided in
  227  subsection (5), a delay of notification in subsection (6), or an
  228  extension thereof under subsection (9) is in effect is
  229  punishable as provided in s. 934.43.
  230         (13) No cause of action shall lie in any court against any
  231  provider of wire or electronic communication service, its
  232  officers, employees, agents, or other specified persons for
  233  providing information, facilities, or assistance in accordance
  234  with the terms of a subpoena under this section.
  235         (14)(a) A provider of wire or electronic communication
  236  services or a remote computing service, upon the request of an
  237  investigative or law enforcement officer, shall take all
  238  necessary steps to preserve records and other evidence in its
  239  possession pending the issuance of a court order or other
  240  process.
  241         (b) Records referred to in paragraph (a) shall be retained
  242  for a period of 90 days, which shall be extended for an
  243  additional 90 days upon a renewed request by an investigative or
  244  law enforcement officer.
  245         (15) A provider of electronic communication service, a
  246  remote computing service, or any other person who furnished
  247  assistance pursuant to this section shall be held harmless from
  248  any claim and civil liability resulting from the disclosure of
  249  information pursuant to this section and shall be reasonably
  250  compensated for reasonable expenses incurred in providing such
  251  assistance. A witness who is subpoenaed to appear to testify
  252  under subsection (2) and who complies with the subpoena must be
  253  paid the same fees and mileage rate paid to a witness appearing
  254  before a court of competent jurisdiction in this state.
  255         Section 2. This act shall take effect October 1, 2018.