Florida Senate - 2019 COMMITTEE AMENDMENT
Bill No. SB 210
Ì531094(Î531094
LEGISLATIVE ACTION
Senate . House
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The Committee on Criminal Justice (Brandes) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Subsection (3) of section 933.02, Florida
6 Statutes, is amended to read:
7 933.02 Grounds for issuance of search warrant.—Upon proper
8 affidavits being made, a search warrant may be issued under the
9 provisions of this chapter upon any of the following grounds:
10 (3) When any property, or when content held within a
11 cellular phone, portable electronic communication device, or
12 microphone-enabled household device as defined in s. 934.02,
13 F.S., constitutes evidence relevant to proving that a felony has
14 been committed;
15
16 This section also applies to any papers or documents used as a
17 means of or in aid of the commission of any offense against the
18 laws of the state.
19 Section 2. Section 933.04, Florida Statutes, is amended to
20 read
21 933.04 Affidavits.—The right of the people to be secure in
22 their persons, houses, papers and effects against unreasonable
23 seizures and searches and against the unreasonable interception
24 of private communications by any means shall not be violated and
25 no search warrant shall be issued except upon probable cause,
26 supported by oath or affirmation particularly describing the
27 place to be searched and the person and thing to be seized.
28 Section 3. Section 934.01, Florida Statutes, is amended to
29 read:
30 934.01 Legislative findings.—On the basis of its own
31 investigations and of published studies, the Legislature makes
32 the following findings:
33 (1) Wire communications are normally conducted through the
34 use of facilities which form part of an intrastate network. The
35 same facilities are used for interstate and intrastate
36 communications.
37 (2) In order to protect effectively the privacy of wire,
38 and oral, and electronic communications, to protect the
39 integrity of court and administrative proceedings, and to
40 prevent the obstruction of intrastate commerce, it is necessary
41 for the Legislature to define the circumstances and conditions
42 under which the interception of wire, and oral, and electronic
43 communications may be authorized and to prohibit any
44 unauthorized interception of such communications and the use of
45 the contents thereof in evidence in courts and administrative
46 proceedings.
47 (3) Organized criminals make extensive use of wire, and
48 oral, and electronic communications in their criminal
49 activities. The interception of such communications to obtain
50 evidence of the commission of crimes or to prevent their
51 commission is an indispensable aid to law enforcement and the
52 administration of justice.
53 (4) To safeguard the privacy of innocent persons, the
54 interception of wire, or oral, or electronic communications when
55 none of the parties to the communication has consented to the
56 interception should be allowed only when authorized by a court
57 of competent jurisdiction and should remain under the control
58 and supervision of the authorizing court. Interception of wire,
59 and oral, and electronic communications should further be
60 limited to certain major types of offenses and specific
61 categories of crime with assurance that the interception is
62 justified and that the information obtained thereby will not be
63 misused.
64 (5) To safeguard the privacy of innocent persons, the
65 Legislature recognizes that the subjective expectation of
66 privacy in real-time cell-site location data, real-time precise
67 global positioning system location data, and historical precise
68 global positioning system location data which society is now
69 prepared to accept is objectively reasonable. As such, the law
70 enforcement collection of the precise location of a person,
71 cellular phone, or portable electronic communication device
72 without the consent of the person or owner of the cellular phone
73 or portable electronic communication device should be allowed
74 only when authorized by a search warrant issued by a court of
75 competent jurisdiction and should remain under the control and
76 supervision of the authorizing court.
77 (6) The Legislature recognizes that the use of portable
78 electronic communication devices is growing at a rapidly
79 increasing rate. These devices can store, and encourage the
80 storing of, an almost limitless amount of personal and private
81 information. Often linked to the Internet, these devices are
82 commonly used to access personal and business information and
83 databases in computers and servers that can be located anywhere
84 in the world. The user of a portable electronic communication
85 device has a reasonable and justifiable expectation of privacy
86 in the information that these devices contain.
87 (7) The Legislature recognizes that the use of household
88 electronic devices, including microphone-enabled household
89 devices, is growing at a rapidly increasing rate. These devices
90 often contain microphones that listen for and respond to
91 environmental cues. These household devices are generally
92 connected to and communicate through the Internet, resulting in
93 the storage of and accessibility to daily household information
94 in a device itself or in a remote computing service. Persons
95 should not have to choose between using household technological
96 enhancements and conveniences or preserving the right to privacy
97 in one’s home.
98 Section 4. Subsection (2) of section 934.02, Florida
99 Statutes, is amended, and subsections (27) and (28) are added to
100 that section, to read:
101 934.02 Definitions.—As used in this chapter:
102 (2) “Oral communication” means any oral communication
103 uttered by a person exhibiting an expectation that such
104 communication is not subject to interception under circumstances
105 justifying such expectation, including the use of a microphone
106 enabled household device, and does not mean any public oral
107 communication uttered at a public meeting or any electronic
108 communication.
109 (27) “Microphone-enabled household device” means a device,
110 sensor, or other physical object within a residence:
111 (a) Capable of connecting to the Internet, directly or
112 indirectly, or to another connected device;
113 (b) Capable of creating, receiving, accessing, processing,
114 or storing electronic data or communications;
115 (c) Which communicates with, by any means, another entity
116 or individual; and
117 (d) Which contains a microphone designed to listen for and
118 respond to environmental cues.
119 (28) “Portable electronic communication device” means an
120 object capable of being easily transported or conveyed by a
121 person which is capable of creating, receiving, accessing,
122 processing, or storing electronic data or communications and
123 which communicates with, by any means, another device, entity,
124 or individual.
125 Section 5. Subsection (2) of section 934.03, Florida
126 Statutes, is amended to read
127 934.03 Interception and disclosure of wire, oral, or
128 electronic communications prohibited.—
129 (2)(a)1. It is lawful under this section and ss. 934.04
130 934.09 for an operator of a switchboard, or an officer,
131 employee, or agent of a provider of wire or electronic
132 communication service whose facilities are used in the
133 transmission of a wire or electronic communication, to
134 intercept, disclose, or use that communication in the normal
135 course of his or her employment while engaged in any activity
136 which is a necessary incident to the rendition of his or her
137 service or to the protection of the rights or property of the
138 provider of that service, except that a provider of wire
139 communication service to the public shall not utilize service
140 observing or random monitoring except for mechanical or service
141 quality control checks.
142 2. Notwithstanding any other law, a provider of wire, oral,
143 or electronic communication service, or an officer, employee, or
144 agent thereof, or landlord, custodian, or other person, may
145 provide information, facilities, or technical assistance to a
146 person authorized by law to intercept wire, oral, or electronic
147 communications if such provider, or an officer, employee, or
148 agent thereof, or landlord, custodian, or other person, has been
149 provided with:
150 a. A court order directing such assistance signed by the
151 authorizing judge; or
152 a.b. A certification in writing by a person specified in s.
153 934.09(7) that no search warrant or court order is required by
154 law, that all statutory requirements have been met, and that the
155 specified assistance is required, setting forth the period of
156 time during which the provision of the information, facilities,
157 or technical assistance is authorized and specifying the
158 information, facilities, or technical assistance required; or
159 b. A search warrant issued by a judge of competent
160 jurisdiction as required by law.
161 3. A provider of wire, oral, or electronic communication
162 service, or an officer, employee, or agent thereof, or landlord,
163 custodian, or other person may not disclose the existence of any
164 interception or the device used to accomplish the interception
165 with respect to which the person has been served with a search
166 warrant furnished an order under this section and ss. 934.04
167 934.09, except as may otherwise be required by legal process and
168 then only after prior notice to the Governor, the Attorney
169 General, the statewide prosecutor, or a state attorney, as may
170 be appropriate. Any such disclosure renders such person liable
171 for the civil damages provided under s. 934.10, and such person
172 may be prosecuted under s. 934.43. An action may not be brought
173 against any provider of wire, oral, or electronic communication
174 service, or an officer, employee, or agent thereof, or landlord,
175 custodian, or other person for providing information,
176 facilities, or assistance in accordance with the terms of a
177 search warrant court order under this section and ss. 934.04
178 934.09.
179 (b) It is lawful under this section and ss. 934.04-934.09
180 for an officer, employee, or agent of the Federal Communications
181 Commission, in the normal course of his or her employment and in
182 discharge of the monitoring responsibilities exercised by the
183 commission in the enforcement of 47 U.S.C. chapter 5, to
184 intercept a wire, oral, or electronic communication transmitted
185 by radio or to disclose or use the information thereby obtained.
186 (c) It is lawful under this section and ss. 934.04-934.09
187 for an investigative or law enforcement officer or a person
188 acting under the direction of an investigative or law
189 enforcement officer to intercept a wire, oral, or electronic
190 communication when such person is a party to the communication
191 or one of the parties to the communication has given prior
192 consent to such interception and the purpose of such
193 interception is to obtain evidence of a criminal act.
194 (d) It is lawful under this section and ss. 934.04-934.09
195 for a person to intercept a wire, oral, or electronic
196 communication when all of the parties to the communication have
197 given prior consent to such interception.
198 (e) It is unlawful to intercept any wire, oral, or
199 electronic communication for the purpose of committing any
200 criminal act.
201 (f) It is lawful under this section and ss. 934.04-934.09
202 for an employee of a telephone company to intercept a wire
203 communication for the sole purpose of tracing the origin of such
204 communication when the interception is requested by the
205 recipient of the communication and the recipient alleges that
206 the communication is obscene, harassing, or threatening in
207 nature. The individual conducting the interception shall notify
208 local police authorities within 48 hours after the time of the
209 interception.
210 (g) It is lawful under this section and ss. 934.04-934.09
211 for an employee of:
212 1. An ambulance service licensed pursuant to s. 401.25, a
213 fire station employing firefighters as defined by s. 633.102, a
214 public utility, a law enforcement agency as defined by s.
215 934.02(10), or any other entity with published emergency
216 telephone numbers;
217 2. An agency operating an emergency telephone number “911”
218 system established pursuant to s. 365.171; or
219 3. The central abuse hotline operated pursuant to s. 39.201
220
221 to intercept and record incoming wire communications; however,
222 such employee may intercept and record incoming wire
223 communications on designated “911” telephone numbers and
224 published nonemergency telephone numbers staffed by trained
225 dispatchers at public safety answering points only. It is also
226 lawful for such employee to intercept and record outgoing wire
227 communications to the numbers from which such incoming wire
228 communications were placed when necessary to obtain information
229 required to provide the emergency services being requested. For
230 the purpose of this paragraph, the term “public utility” has the
231 same meaning as provided in s. 366.02 and includes a person,
232 partnership, association, or corporation now or hereafter owning
233 or operating equipment or facilities in the state for conveying
234 or transmitting messages or communications by telephone or
235 telegraph to the public for compensation.
236 (h) It shall not be unlawful under this section and ss.
237 934.04-934.09 for any person:
238 1. To intercept or access an electronic communication made
239 through an electronic communication system that is configured so
240 that such electronic communication is readily accessible to the
241 general public.
242 2. To intercept any radio communication which is
243 transmitted:
244 a. By any station for the use of the general public, or
245 that relates to ships, aircraft, vehicles, or persons in
246 distress;
247 b. By any governmental, law enforcement, civil defense,
248 private land mobile, or public safety communications system,
249 including any police or fire communications system, readily
250 accessible to the general public;
251 c. By a station operating on an authorized frequency within
252 the bands allocated to the amateur, citizens band, or general
253 mobile radio services; or
254 d. By any marine or aeronautical communications system.
255 3. To engage in any conduct which:
256 a. Is prohibited by s. 633 of the Communications Act of
257 1934; or
258 b. Is excepted from the application of s. 705(a) of the
259 Communications Act of 1934 by s. 705(b) of that act.
260 4. To intercept any wire or electronic communication the
261 transmission of which is causing harmful interference to any
262 lawfully operating station of consumer electronic equipment to
263 the extent necessary to identify the source of such
264 interference.
265 5. To intercept, if such person is another user of the same
266 frequency, any radio communication that is not scrambled or
267 encrypted made through a system that utilizes frequencies
268 monitored by individuals engaged in the provision or the use of
269 such system.
270 6. To intercept a satellite transmission that is not
271 scrambled or encrypted and that is transmitted:
272 a. To a broadcasting station for purposes of retransmission
273 to the general public; or
274 b. As an audio subcarrier intended for redistribution to
275 facilities open to the public, but not including data
276 transmissions or telephone calls, when such interception is not
277 for the purposes of direct or indirect commercial advantage or
278 private financial gain.
279 7. To intercept and privately view a private satellite
280 video communication that is not scrambled or encrypted or to
281 intercept a radio communication that is transmitted on
282 frequencies allocated under subpart D of part 74 of the rules of
283 the Federal Communications Commission that is not scrambled or
284 encrypted, if such interception is not for a tortious or illegal
285 purpose or for purposes of direct or indirect commercial
286 advantage or private commercial gain.
287 (i) It shall not be unlawful under this section and ss.
288 934.04-934.09:
289 1. To use a pen register or a trap and trace device as
290 authorized under ss. 934.31-934.34 or under federal law; or
291 2. For a provider of electronic communication service to
292 record the fact that a wire or electronic communication was
293 initiated or completed in order to protect such provider,
294 another provider furnishing service toward the completion of the
295 wire or electronic communication, or a user of that service,
296 from fraudulent, unlawful, or abusive use of such service.
297 (j) It is not unlawful under this section and ss. 934.04
298 934.09 for a person acting under color of law to intercept the
299 wire or electronic communications of a computer trespasser which
300 are transmitted to, through, or from a protected computer if:
301 1. The owner or operator of the protected computer
302 authorizes the interception of the communications of the
303 computer trespasser;
304 2. The person acting under color of law is lawfully engaged
305 in an investigation;
306 3. The person acting under color of law has reasonable
307 grounds to believe that the contents of the communications of
308 the computer trespasser will be relevant to the investigation;
309 and
310 4. The interception does not acquire communications other
311 than those transmitted to, through, or from the computer
312 trespasser.
313 (k) It is lawful under this section and ss. 934.04-934.09
314 for a child under 18 years of age to intercept and record an
315 oral communication if the child is a party to the communication
316 and has reasonable grounds to believe that recording the
317 communication will capture a statement by another party to the
318 communication that the other party intends to commit, is
319 committing, or has committed an unlawful sexual act or an
320 unlawful act of physical force or violence against the child.
321 Section 6. Section 934.06, Florida Statutes, is amended to
322 read:
323 934.06 Prohibition of use as evidence of intercepted wire
324 or oral communications; content of cellular phone, microphone
325 enabled household device, or portable electronic communication
326 device; exceptions.—Whenever any wire or oral communication has
327 been intercepted, or when the content of a cellular phone,
328 microphone-enabled household device, or portable electronic
329 communication device is obtained without a search warrant
330 supported by probable cause no part of the contents of such
331 communication and no evidence derived therefrom may be received
332 in evidence in any trial, hearing, or other proceeding in or
333 before any court, grand jury, department, officer, agency,
334 regulatory body, legislative committee, or other authority of
335 the state, or a political subdivision thereof, if the disclosure
336 of that information would be in violation of this chapter. The
337 prohibition of use as evidence provided in this section does not
338 apply in cases of prosecution for criminal interception in
339 violation of the provisions of this chapter, or in cases where
340 the content of a cellular phone, microphone-enabled household
341 device, or portable electronic communication device is lawfully
342 obtained under circumstance where a search warrant is not
343 required.
344 Section 7. Subsections (1) and (2) of section 934.07,
345 Florida Statutes, are amended to read:
346 934.07 Authorization for interception of wire, oral, or
347 electronic communications.—
348 (1) The Governor, the Attorney General, the statewide
349 prosecutor, or any state attorney may authorize an application
350 to a judge of competent jurisdiction for, and such judge may
351 issue grant in conformity with ss. 934.03-934.09 a search
352 warrant as required by law an order authorizing or approving the
353 interception of, wire, oral, or electronic communications by:
354 (a) The Department of Law Enforcement or any law
355 enforcement agency as defined in s. 934.02 having responsibility
356 for the investigation of the offense as to which the application
357 is made when such interception may provide or has provided
358 evidence of the commission of the offense of murder, kidnapping,
359 aircraft piracy, arson, gambling, robbery, burglary, theft,
360 dealing in stolen property, criminal usury, bribery, or
361 extortion; any felony violation of ss. 790.161-790.166,
362 inclusive; any violation of s. 787.06; any violation of chapter
363 893; any violation of the provisions of the Florida Anti-Fencing
364 Act; any violation of chapter 895; any violation of chapter 896;
365 any violation of chapter 815; any violation of chapter 847; any
366 violation of s. 827.071; any violation of s. 944.40; or any
367 conspiracy or solicitation to commit any violation of the laws
368 of this state relating to the crimes specifically enumerated in
369 this paragraph.
370 (b) The Department of Law Enforcement, together with other
371 assisting personnel as authorized and requested by the
372 department under s. 934.09(5), for the investigation of the
373 offense as to which the application is made when such
374 interception may provide or has provided evidence of the
375 commission of any offense that may be an act of terrorism or in
376 furtherance of an act of terrorism or evidence of any conspiracy
377 or solicitation to commit any such violation.
378 (2)(a) If, during the course of an interception of
379 communications by a law enforcement agency as authorized under
380 paragraph (1)(a), the law enforcement agency finds that the
381 intercepted communications may provide or have provided evidence
382 of the commission of any offense that may be an act of terrorism
383 or in furtherance of an act of terrorism, or evidence of any
384 conspiracy or solicitation to commit any such violation, the law
385 enforcement agency shall promptly notify the Department of Law
386 Enforcement and apprise the department of the contents of the
387 intercepted communications. The agency notifying the department
388 may continue its previously authorized interception with
389 appropriate minimization, as applicable, and may otherwise
390 assist the department as provided in this section.
391 (b) Upon its receipt of information of the contents of an
392 intercepted communications from a law enforcement agency, the
393 Department of Law Enforcement shall promptly review the
394 information to determine whether the information relates to an
395 actual or anticipated act of terrorism as defined in this
396 section. If, after reviewing the contents of the intercepted
397 communications, there is probable cause that the contents of the
398 intercepted communications meet the criteria of paragraph
399 (1)(b), the Department of Law Enforcement may make application
400 for the interception of wire, oral, or electronic communications
401 consistent with paragraph (1)(b). The department may make an
402 independent new application for interception based on the
403 contents of the intercepted communications. Alternatively, the
404 department may request the law enforcement agency that provided
405 the information to join with the department in seeking a new
406 search warrant as required by law or an amendment of the
407 original interception search warrant order, or may seek
408 additional authority to continue intercepting communications
409 under the direction of the department. In carrying out its
410 duties under this section, the department may use the provisions
411 for an emergency interception provided in s. 934.09(7) if
412 applicable under statutory criteria.
413 Section 8. Section 934.09, Florida Statutes, is amended to
414 read:
415 934.09 Procedure for interception of wire, oral, or
416 electronic communications.—
417 (1) Each application for a search warrant an order
418 authorizing or approving the interception of a wire, oral, or
419 electronic communication under ss. 934.03-934.09 shall be made
420 in writing upon oath or affirmation to a judge of competent
421 jurisdiction and shall state the applicant’s authority to make
422 such application. Each application shall include the following
423 information:
424 (a) The identity of the investigative or law enforcement
425 officer making the application and the officer authorizing the
426 application.
427 (b) A full and complete statement of the facts and
428 circumstances relied upon by the applicant to justify his or her
429 belief that a search warrant an order should be issued,
430 including:
431 1. Details as to the particular offense that has been, is
432 being, or is about to be committed.
433 2. Except as provided in subsection (11), a particular
434 description of the nature and location of the facilities from
435 which, or the place where, the communications are to be
436 intercepted.
437 3. A particular description of the type of communications
438 sought to be intercepted.
439 4. The identity of the person, if known, committing the
440 offense and whose communications are to be intercepted.
441 (c) A full and complete statement as to whether or not
442 other investigative procedures have been tried and failed or why
443 they reasonably appear to be unlikely to succeed if tried or to
444 be too dangerous.
445 (d) A statement of the period of time for which the
446 interception is required to be maintained and, if the nature of
447 the investigation is such that the authorization for
448 interception should not automatically terminate when the
449 described type of communication has been first obtained, a
450 particular description of facts establishing probable cause to
451 believe that additional communications of the same type will
452 occur thereafter.
453 (e) A full and complete statement of the facts concerning
454 all previous applications known to the individual authorizing
455 and making the application, made to any judge for authorization
456 to intercept, or for approval of interceptions of, wire, oral,
457 or electronic communications involving any of the same persons,
458 facilities, or places specified in the application, and the
459 action taken by the judge on each such application.
460 (f) When the application is for the extension of a search
461 warrant an order, a statement setting forth the results thus far
462 obtained from the interception or a reasonable explanation of
463 the failure to obtain such results.
464 (2) The judge may require the applicant to furnish
465 additional testimony or documentary evidence in support of the
466 application.
467 (3) Upon such application, the judge may authorize a search
468 warrant enter an ex parte order, as requested or as modified,
469 authorizing or approving interception of wire, oral, or
470 electronic communications within the territorial jurisdiction of
471 the court in which the judge is sitting, and outside such
472 jurisdiction but within the State of Florida in the case of a
473 mobile interception device authorized by the judge within such
474 jurisdiction, if the judge determines on the basis of the facts
475 submitted by the applicant that:
476 (a) There is probable cause for belief that an individual
477 is committing, has committed, or is about to commit an offense
478 as provided in s. 934.07.
479 (b) There is probable cause for belief that particular
480 communications concerning that offense will be obtained through
481 such interception.
482 (c) Normal investigative procedures have been tried and
483 have failed or reasonably appear to be unlikely to succeed if
484 tried or to be too dangerous.
485 (d) Except as provided in subsection (11), there is
486 probable cause for belief that the facilities from which, or the
487 place where, the wire, oral, or electronic communications are to
488 be intercepted are being used, or are about to be used, in
489 connection with the commission of such offense, or are leased
490 to, listed in the name of, or commonly used by such person.
491 (4) Each search warrant order authorizing or approving the
492 interception of any wire, oral, or electronic communication
493 shall specify:
494 (a) The identity of the person, if known, whose
495 communications are to be intercepted.
496 (b) The nature and location of the communications
497 facilities as to which, or the place where, authority to
498 intercept is granted.
499 (c) A particular description of the type of communication
500 sought to be intercepted and a statement of the particular
501 offense to which it relates.
502 (d) The identity of the agency authorized to intercept the
503 communications and of the person authorizing the application.
504 (e) The period of time during which such interception is
505 authorized, including a statement as to whether or not the
506 interception shall automatically terminate when the described
507 communication has been first obtained.
508
509 A search warrant An order authorizing the interception of a
510 wire, oral, or electronic communication shall, upon the request
511 of the applicant, direct that a provider of wire or electronic
512 communication service, landlord, custodian, or other person
513 shall furnish the applicant forthwith all information,
514 facilities, and technical assistance necessary to accomplish the
515 interception unobtrusively and with a minimum of interference
516 with the services that such service provider, landlord,
517 custodian, or person is according the person whose
518 communications are to be intercepted. The obligation of a
519 provider of wire, oral, or electronic communication service
520 under such a search warrant an order may include, but is not
521 limited to, conducting an in-progress trace during an
522 interception, or providing other assistance to support the
523 investigation as may be specified in the search warrant order.
524 Any provider of wire or electronic communication service,
525 landlord, custodian, or other person furnishing such facilities
526 or technical assistance shall be compensated therefor by the
527 applicant for reasonable expenses incurred in providing such
528 facilities or assistance.
529 (5) No search warrant order entered under this section may
530 authorize or approve the interception of any wire, oral, or
531 electronic communication for any period longer than is necessary
532 to achieve the objective of the authorization or in any event
533 longer than 30 days. Such 30-day period begins on the day on
534 which the agent or officer of the law enforcement agency first
535 begins to conduct an interception under the search warrant order
536 or 10 days after the search warrant is approved order is
537 entered, whichever occurs earlier. Extensions of a search
538 warrant an order may be granted but only upon application for an
539 extension made in accordance with subsection (1) and upon the
540 court making the findings required by subsection (3). The period
541 of extension shall be no longer than the authorizing judge deems
542 necessary to achieve the purposes for which it was granted and
543 in no event for longer than 30 days. Every search warrant order
544 and extension thereof shall contain a provision that the
545 authorization to intercept shall be executed as soon as
546 practicable, shall be conducted in such a way as to minimize the
547 interception of communications not otherwise subject to
548 interception under ss. 934.03-934.09, and must terminate upon
549 attainment of the authorized objective or in any event in 30
550 days. If the intercepted communication is in code or foreign
551 language and an expert in that foreign language or code is not
552 reasonably available during the interception period,
553 minimization may be accomplished as soon as practicable after
554 such interception. An interception under ss. 934.03-934.09 may
555 be conducted in whole or in part by government personnel or by
556 an individual operating under a contract with the government,
557 acting under the supervision of an agent or officer of the law
558 enforcement agency authorized to conduct the interception.
559 (6) Whenever a search warrant an order authorizing
560 interception is granted entered pursuant to ss. 934.03-934.09,
561 the search warrant order may require reports to be made to the
562 judge who issued the search warrant order showing what progress
563 has been made toward achievement of the authorized objective and
564 the need for continued interception. Such reports shall be made
565 at such intervals as the judge may require.
566 (7) Notwithstanding any other provision of this chapter,
567 any investigative or law enforcement officer specially
568 designated by the Governor, the Attorney General, the statewide
569 prosecutor, or a state attorney acting under this chapter, who
570 reasonably determines that:
571 (a) An emergency exists that:
572 1. Involves immediate danger of death or serious physical
573 injury to any person, the danger of escape of a prisoner, or
574 conspiratorial activities threatening the security interest of
575 the nation or state; and
576 2. Requires that a wire, oral, or electronic communication
577 be intercepted before a search warrant an order authorizing such
578 interception can, with due diligence, be obtained; and
579 (b) There are grounds upon which a search warrant an order
580 could be entered under this chapter to authorize such
581 interception
582
583 may intercept such wire, oral, or electronic communication if an
584 application for a search warrant an order approving the
585 interception is made in accordance with this section within 48
586 hours after the interception has occurred or begins to occur. In
587 the absence of a search warrant an order, such interception
588 shall immediately terminate when the communication sought is
589 obtained or when the application for the search warrant order is
590 denied, whichever is earlier. If such application for approval
591 is denied, or in any other case in which the interception is
592 terminated without a search warrant an order having been issued,
593 the contents of any wire, oral, or electronic communication
594 intercepted shall be treated as having been obtained in
595 violation of s. 934.03(4), and an inventory shall be served as
596 provided for in paragraph (8)(e) on the person named in the
597 application.
598 (8)(a) The contents of any wire, oral, or electronic
599 communication intercepted by any means authorized by ss. 934.03
600 934.09 shall, if possible, be recorded on tape or wire or other
601 comparable device. The recording of the contents of any wire,
602 oral, or electronic communication under this subsection shall be
603 kept in such a way as will protect the recording from editing or
604 other alterations. Immediately upon the expiration of the period
605 of the search warrant order, or extensions thereof, such
606 recordings shall be made available to the judge approving the
607 search warrant issuing such order and sealed under his or her
608 directions. Custody of the recordings shall be wherever the
609 judge orders. They shall not be destroyed except upon an order
610 of the issuing or denying judge, or that judge’s successor in
611 office, and in any event shall be kept for 10 years. Duplicate
612 recordings may be made for use or disclosure pursuant to the
613 provisions of s. 934.08(1) and (2) for investigations, or for
614 purposes of discovery as required by law.
615 (b) The presence of the seal provided for by this
616 subsection, or a satisfactory explanation for the absence
617 thereof, shall be a prerequisite for the use or disclosure of
618 the contents of any wire, oral, or electronic communication or
619 evidence derived therefrom under s. 934.08(3), as required by
620 federal law.
621 (c) Applications made and search warrants orders granted
622 under ss. 934.03-934.09 shall be sealed by the judge. Custody of
623 the applications and search warrants orders shall be wherever
624 the judge directs. As required by federal law, such applications
625 and search warrants orders shall be disclosed only for purposes
626 of discovery or upon a showing of good cause before a judge of
627 competent jurisdiction and shall not be destroyed except on
628 order of the issuing or denying judge, or that judge’s successor
629 in office, and in any event shall be kept for 10 years.
630 (d) Any violation of the provisions of this subsection may
631 be punished as contempt of the issuing or denying judge.
632 (e) Within a reasonable time but not later than 90 days
633 after the termination of the period of a search warrant an order
634 or extensions thereof, the issuing or denying judge shall cause
635 to be served on the persons named in the search warrant order or
636 the application, and such other parties to intercepted
637 communications as the judge may determine in his or her
638 discretion to be in the interest of justice, an inventory which
639 shall include notice of:
640 1. The fact of the approval of the search warrant entry of
641 the order or the application.
642 2. The date of the approval of the search warrant entry and
643 the period of authorized, approved, or disapproved interception,
644 or the denial of the application.
645 3. The fact that during the period wire, oral, or
646 electronic communications were or were not intercepted.
647
648 The judge, upon the filing of a motion, may make available to
649 such person or the person’s counsel for inspection such portions
650 of the intercepted communications, applications, and search
651 warrants orders as the judge determines to be in the interest of
652 justice. On an ex parte showing of good cause to a judge of
653 competent jurisdiction, the serving of the inventory required by
654 this paragraph may be postponed.
655 (9) As required by federal law, The contents of any
656 intercepted wire, oral, or electronic communication or evidence
657 derived therefrom shall not be received in evidence or otherwise
658 disclosed in any trial, hearing, or other proceeding unless each
659 party, not less than 10 days before the trial, hearing, or
660 proceeding, has been furnished with a copy of the search warrant
661 court order and accompanying application under which the
662 interception was authorized or approved. This 10-day period may
663 be waived by the judge if he or she finds that it was not
664 possible to furnish the party with the above information 10 days
665 before the trial, hearing, or proceeding and that the party will
666 not be prejudiced by the delay in receiving such information.
667 (10)(a) An Any aggrieved person before or in any trial,
668 hearing, or proceeding in or before any court, department,
669 officer, agency, regulatory body, or other authority may move to
670 suppress the contents of any intercepted wire, oral, or
671 electronic communication, or evidence derived therefrom, on the
672 grounds that:
673 1. The communication was unlawfully intercepted;
674 2. The search warrant order of authorization or approval
675 under which it was intercepted is insufficient on its face; or
676 3. The interception was not made in conformity with the
677 search warrant order of authorization or approval.
678 (b) Except as otherwise provided in the applicable Florida
679 Rules of Criminal Procedure, in a criminal matter:
680 1. Such motion shall be made before the trial, hearing, or
681 proceeding unless there was no opportunity to make such motion
682 or the person was not aware of the grounds of the motion.
683 2. If the motion is granted, the contents of the
684 intercepted wire or oral communication, or evidence derived
685 therefrom, shall be treated as having been obtained in violation
686 of ss. 934.03-934.09 and are not admissible as evidence.
687 3. The judge, upon the filing of such motion by the
688 aggrieved person, may make available to the aggrieved person or
689 his or her counsel for inspection such portions of the
690 intercepted communication or evidence derived therefrom as the
691 judge determines to be in the interest of justice.
692 (c)(b) In addition to any other right to appeal, the state
693 shall have the right to appeal from an order granting a motion
694 to suppress made under paragraph (a) or the denial of an
695 application for a search warrant an order of approval if the
696 attorney shall certify to the judge or other official granting
697 such motion or denying such application that the appeal is not
698 taken for purposes of delay. Such appeal shall be taken within
699 30 days after the date the order was entered and shall be
700 diligently prosecuted.
701 (d)(c) The remedies and sanctions described in ss. 934.03
702 934.10 with respect to the interception of electronic
703 communications are the only judicial remedies and sanctions for
704 violations of those sections involving such communications.
705 (11) The requirements of subparagraph (1)(b)2. and
706 paragraph (3)(d) relating to the specification of the facilities
707 from which, or the place where, the communication is to be
708 intercepted do not apply if:
709 (a) In the case of an application with respect to the
710 interception of an oral communication:
711 1. The application is by an agent or officer of a law
712 enforcement agency and is approved by the Governor, the Attorney
713 General, the statewide prosecutor, or a state attorney.
714 2. The application contains a full and complete statement
715 as to why such specification is not practical and identifies the
716 person committing the offense and whose communications are to be
717 intercepted.
718 3. The judge finds that such specification is not
719 practical.
720 (b) In the case of an application with respect to a wire or
721 electronic communication:
722 1. The application is by an agent or officer of a law
723 enforcement agency and is approved by the Governor, the Attorney
724 General, the statewide prosecutor, or a state attorney.
725 2. The application identifies the person believed to be
726 committing the offense and whose communications are to be
727 intercepted and the applicant makes a showing that there is
728 probable cause to believe that the person’s actions could have
729 the effect of thwarting interception from a specified facility
730 or that the person whose communications are to be intercepted
731 has removed, or is likely to remove, himself or herself to
732 another judicial circuit within the state.
733 3. The judge finds that such showing has been adequately
734 made.
735 4. The search warrant order authorizing or approving the
736 interception is limited to interception only for such time as it
737 is reasonable to presume that the person identified in the
738 application is or was reasonably proximate to the instrument
739 through which such communication will be or was transmitted.
740
741 Consistent with this paragraph, a judge of competent
742 jurisdiction may authorize interception within this state,
743 whether the interception is within or outside the court’s
744 jurisdiction, if the application for the interception makes a
745 showing that some activity or conspiracy believed to be related
746 to, or in furtherance of, the criminal predicate for the
747 requested interception has occurred or will likely occur, or the
748 communication to be intercepted or expected to be intercepted is
749 occurring or will likely occur, in whole or in part, within the
750 jurisdiction of the court where the order is being sought.
751 (12) If an interception of a communication is to be carried
752 out pursuant to subsection (11), such interception may not begin
753 until the facilities from which, or the place where, the
754 communication is to be intercepted is ascertained by the person
755 implementing the interception search warrant order. A provider
756 of wire or electronic communications service that has received a
757 an search warrant order as provided under paragraph (11)(b) may
758 petition the court to modify or quash the search warrant order
759 on the ground that the interception cannot be performed in a
760 timely or reasonable fashion. The court, upon notice to the
761 state, shall decide such a petition expeditiously.
762 (13) Consistent with this section, a judge of competent
763 jurisdiction may authorize interception within this state,
764 whether the interception is within or outside the court’s
765 jurisdiction, if the application for the interception makes a
766 showing that some activity or conspiracy believed to be related
767 to, or in furtherance of, the criminal predicate for the
768 requested interception has occurred or will likely occur, or the
769 communication to be intercepted or expected to be intercepted is
770 occurring or will likely occur, in whole or in part, within the
771 jurisdiction of the court where the search warrant is being
772 sought.
773 Section 9. Subsection (2) of section 934.10, Florida
774 Statutes, is amended, and subsection (1) of that section is
775 republished, to read:
776 934.10 Civil remedies.—
777 (1) Any person whose wire, oral, or electronic
778 communication is intercepted, disclosed, or used in violation of
779 ss. 934.03-934.09 shall have a civil cause of action against any
780 person or entity who intercepts, discloses, or uses, or procures
781 any other person or entity to intercept, disclose, or use, such
782 communications and shall be entitled to recover from any such
783 person or entity which engaged in that violation such relief as
784 may be appropriate, including:
785 (a) Preliminary or equitable or declaratory relief as may
786 be appropriate;
787 (b) Actual damages, but not less than liquidated damages
788 computed at the rate of $100 a day for each day of violation or
789 $1,000, whichever is higher;
790 (c) Punitive damages; and
791 (d) A reasonable attorney’s fee and other litigation costs
792 reasonably incurred.
793 (2) A good faith reliance on:
794 (a) A search warrant court order, subpoena, or legislative
795 authorization as provided in ss. 934.03-934.09;,
796 (b) A request of an investigative or law enforcement
797 officer under s. 934.09(7);, or
798 (c) A good faith determination that Florida or federal law,
799 other than 18 U.S.C. s. 2511(2)(d), authorized permitted the
800 conduct complained of,
801
802 shall constitutes constitute a complete defense to any civil or
803 criminal, or administrative action arising out of such conduct
804 under the laws of this state.
805 Section 10. Section 934.21, Florida Statutes, is amended to
806 read:
807 934.21 Unlawful access to stored communications;
808 penalties.—
809 (1) Except as provided in subsection (3), whoever:
810 (a) Intentionally accesses without authorization a facility
811 through which an electronic communication service is provided,
812 or
813 (b) Intentionally exceeds an authorization to access such
814 facility,
815
816 and thereby obtains, alters, or prevents authorized access to a
817 wire or electronic communication while it is in electronic
818 storage in such system shall be punished as provided in
819 subsection (2).
820 (2) The punishment for an offense under subsection (1) is
821 as follows:
822 (a) If the offense is committed for purposes of commercial
823 advantage, malicious destruction or damage, or private
824 commercial gain, the person is:
825 1. In the case of a first offense under this subsection,
826 commits guilty of a misdemeanor of the first degree, punishable
827 as provided in s. 775.082, s. 775.083, or s. 934.41.
828 2. In the case of any subsequent offense under this
829 subsection, commits guilty of a felony of the third degree,
830 punishable as provided in s. 775.082, s. 775.083, s. 775.084, or
831 s. 934.41.
832 (b) In any other case, the person commits is guilty of a
833 misdemeanor of the second degree, punishable as provided in s.
834 775.082 or s. 775.083.
835 (3) Subsection (1) does not apply with respect to conduct
836 authorized:
837 (a) By the person or entity providing a wire, oral, or
838 electronic communications service, including through cellular
839 phones, microphone-enabled household devices, or portable
840 electronic communication devices;
841 (b) By a user of a wire, oral, or electronic communications
842 service, including through cellular phones, microphone-enabled
843 household devices, or portable electronic communication devices,
844 with respect to a communication of or intended for that user; or
845 (c) In s. 934.09 or, s. 934.23, or s. 934.24;
846 (d) In chapter 933; or
847 (e) For accessing for a legitimate business purpose
848 information that is not personally identifiable or that has been
849 collected in a way that prevents identification of the user of
850 the device.
851 Section 11. Section 934.42, Florida Statutes, is amended to
852 read:
853 934.42 Mobile tracking device and location tracking
854 authorization.—
855 (1) As used in this section, the term:
856 (a) “Mobile tracking device” means an electronic or
857 mechanical device that permits the tracking of the movement of a
858 person or an object.
859 (b) “Real-time location tracking” means:
860 1. Installation and use of a mobile tracking device on the
861 object to be tracked;
862 2. Acquisition of real-time cell-site location data; or
863 3. Acquisition of real-time precise global positioning
864 system location data.
865 (c) “Historical location data” means historical precise
866 global positioning system location data in the possession of a
867 provider.
868 (2)(1) An investigative or law enforcement officer may make
869 application to a judge of competent jurisdiction for a search
870 warrant an order authorizing or approving real-time location
871 tracking or the acquisition of historical location data in the
872 possession of the provider the installation and use of a mobile
873 tracking device.
874 (3)(2) An application under subsection (2) (1) of this
875 section must include:
876 (a) A statement of the identity of the applicant and the
877 identity of the law enforcement agency conducting the
878 investigation.
879 (b) A statement setting forth a reasonable period of time
880 that the mobile tracking device may be used or the location data
881 may be obtained in real time, not to exceed 45 days from the
882 date the search warrant is issued. The court may, for good
883 cause, grant one or more extensions for a reasonable period of
884 time, not to exceed 45 days each. When seeking historical
885 location data, the applicant must specify a date range for the
886 data sought certification by the applicant that the information
887 likely to be obtained is relevant to an ongoing criminal
888 investigation being conducted by the investigating agency.
889 (c) A statement of the offense to which the information
890 likely to be obtained relates.
891 (d) A statement as to whether it may be necessary to use
892 and monitor the mobile tracking device outside the jurisdiction
893 of the court from which authorization is being sought.
894 (4)(3) Upon application made as provided under subsection
895 (3) (2), the court, if it finds probable cause that the
896 certification and finds that the statements required by
897 subsection (3) (2) have been made in the application, must grant
898 a search warrant shall enter an ex parte order authorizing real
899 time location tracking the installation and use of a mobile
900 tracking device or the acquisition of historical location data.
901 Such search warrant order may authorize the location tracking
902 use of the device within the jurisdiction of the court and
903 outside that jurisdiction but within the State of Florida if the
904 location tracking device is initiated installed within the
905 jurisdiction of the court. The search warrant must command the
906 investigative or law enforcement officer to complete any
907 initiation of the location tracking or execution of the search
908 warrant for historical location data authorized by the search
909 warrant within a specified period of time not to exceed 10
910 calendar days.
911 (5)(4) A court may not require greater specificity or
912 additional information beyond that which is required by law and
913 this section as a requisite for issuing a search warrant an
914 order.
915 (6) Within 10 days after the time period specified in
916 paragraph (3)(b) has ended, the investigative or law enforcement
917 officer executing a search warrant must return the search
918 warrant to the issuing judge. When the search warrant is
919 authorizing the acquisition of historical location data, the
920 investigative or law enforcement officer executing the search
921 warrant must return the search warrant to the issuing judge
922 within 10 days after receipt of the records. The investigative
923 or law enforcement officer may do so by reliable electronic
924 means.
925 (7) Within 10 days after the time period specified in
926 paragraph (3)(b) has ended, the investigative or law enforcement
927 officer executing a search warrant must serve a copy of the
928 search warrant on the person who, or whose property, was
929 tracked. When the search warrant is authorizing the acquisition
930 of historical location data, the investigative or law
931 enforcement officer executing the search warrant must serve a
932 copy of the search warrant on the person whose data was obtained
933 within 10 days after receipt of the records. Service may be
934 accomplished by delivering a copy to the person who, or whose
935 property, was tracked or data obtained or by leaving a copy at
936 the person’s residence or usual place of abode with an
937 individual of suitable age and discretion who resides at that
938 location and by mailing a copy to the person’s last known
939 address. Upon a showing of good cause to a court of competent
940 jurisdiction, the court may grant one or more postponements of
941 this notice for a period of 90 days each.
942 (8)(5) The standards established by Florida courts and the
943 United States Supreme Court for the installation, use, or and
944 monitoring of mobile tracking devices and the acquisition of
945 location data shall apply to the installation, use, or
946 monitoring and use of any device and the acquisition of location
947 data as authorized by this section.
948 (6) As used in this section, a “tracking device” means an
949 electronic or mechanical device which permits the tracking of
950 the movement of a person or object.
951 (9)(a) Notwithstanding any other provision of this chapter,
952 any investigative or law enforcement officer specially
953 designated by the Governor, the Attorney General, the statewide
954 prosecutor, or a state attorney acting pursuant to this chapter
955 who reasonably determines that:
956 1. An emergency exists which:
957 a. Involves immediate danger of death or serious physical
958 injury to any person or the danger of escape of a prisoner; and
959 b. Requires real-time location tracking before a search
960 warrant authorizing such tracking can, with due diligence, be
961 obtained; and
962 2. There are grounds upon which a search warrant could be
963 issued under this chapter to authorize such tracking,
964
965 may engage in real-time location tracking if, within 48 hours
966 after the tracking has occurred or begins to occur, a search
967 warrant approving the tracking is issued in accordance with this
968 section.
969 (b) In the absence of an authorizing search warrant, such
970 tracking must immediately terminate when the information sought
971 is obtained, when the application for the search warrant is
972 denied, or when 48 hours have lapsed since the tracking began,
973 whichever is earlier.
974 Section 12. This act shall take effect July 1, 2019.
975
976 ================= T I T L E A M E N D M E N T ================
977 And the title is amended as follows:
978 Delete everything before the enacting clause
979 and insert:
980 A bill to be entitled
981 An act relating to searches of cellular phones and
982 other electronic devices; amending s. 933.02, F.S.;
983 expanding the grounds for issuance of a search
984 warrant; providing that content held within a cellular
985 phone, microphone-enabled household device, or
986 portable electronic communication device may
987 constitute evidence relevant to proving that a felony
988 has been committed; amending s. 933.04, F.S.; adopting
989 the constitutional protection against unreasonable
990 interception of private communications by any means
991 for purposes of obtaining a search warrant; amending
992 s. 934.01, F.S.; revising and providing legislative
993 findings; amending s. 934.02, F.S.; redefining the
994 term “oral communication”; defining the terms
995 “microphone-enabled household device” and “portable
996 electronic communication device”; amending s. 934.03,
997 F.S.; authorizing specified persons to provide
998 information, facilities, or technical assistance to a
999 person authorized by law to intercept wire, oral, or
1000 electronic communications if the person has been
1001 provided with a search warrant; prohibiting specified
1002 persons from disclosing the existence of any
1003 interception of a wire, oral, or electronic
1004 communication with respect to which the person has
1005 been served with a search warrant; amending s. 934.06,
1006 F.S.; to requiring a search warrant to obtain certain
1007 communication content; amending s. 934.07, F.S.;
1008 authorizing a judge to issue, instead of granting, a
1009 search warrant in conformity with specified
1010 provisions; authorizing the Department of Law
1011 Enforcement to request a law enforcement agency that
1012 provided it with certain information to join with the
1013 department in seeking a new search warrant; amending
1014 s. 934.08, F.S.; authorizing certain disclosure or use
1015 when an investigative or law enforcement officer
1016 intercepts wire, oral, or electronic communications
1017 relating to offenses other than those specified in a
1018 search warrant; amending s. 934.09, F.S.; requiring
1019 that each application for a search warrant, rather
1020 than an order, authorizing or approving the
1021 interception of wire, oral, or electronic
1022 communications be made in writing and state the
1023 applicant’s authority; authorizing a judge to
1024 authorize a search warrant ex parte, rather than an ex
1025 parte order, based on the application under certain
1026 circumstances; specifying requirements for search
1027 warrants, rather than orders, issued under certain
1028 circumstances; authorizing an aggrieved person to move
1029 to suppress the contents of certain wire, oral, or
1030 electronic communications before, as well as during, a
1031 trial, hearing, or proceeding; providing for
1032 inadmissibility of certain evidence if a certain
1033 motion is granted; authorizing a judge of competent
1034 jurisdiction to authorize interception within this
1035 state under specified circumstances; amending s.
1036 934.10, F.S.; providing that a good faith reliance on
1037 a search warrant issued under certain provisions
1038 constitutes a complete defense against specified
1039 actions; amending s. 934.21, F.S.; revising the
1040 exceptions to conduct that constitutes unlawful access
1041 to stored communications; conforming a provision to
1042 changes made by the act; amending s. 934.42, F.S.;
1043 defining the terms “mobile tracking device,” “real
1044 time location tracking,” and “historical location
1045 data”; authorizing an investigative or law enforcement
1046 officer to apply to a judge of competent jurisdiction
1047 for a search warrant, rather than an order,
1048 authorizing real-time location tracking or acquisition
1049 of historical location data; requiring an application
1050 for a search warrant to include a statement of a
1051 reasonable period of time that the mobile tracking
1052 device may be used or the location data may be
1053 obtained in real time, not to exceed a specified
1054 limit; authorizing a court to grant extensions that do
1055 not individually exceed a specified limit, for good
1056 cause; deleting a provision requiring a certification
1057 to be included in the application; providing that the
1058 court, if it finds probable cause and finds the
1059 required statements in the application, must grant a
1060 search warrant; specifying the search warrant may
1061 authorize real-time location tracking or acquisition
1062 of historical location data; providing the search
1063 warrant may authorize the tracking as specified;
1064 requiring the search warrant to command the officer to
1065 complete any initiation of the location tracking
1066 authorized by the search warrant within a certain
1067 timeframe; providing requirements for the return of
1068 the search warrant to the judge and service of a copy
1069 of the search warrant on the person who was tracked or
1070 whose property was tracked; specifying how a search
1071 warrant authorizing the acquisition of historical
1072 location data must be returned and served; authorizing
1073 a court, for good cause, to postpone the notice
1074 requirement for a specified time period; requiring
1075 that the standards established by Florida courts for
1076 the installation, use, or monitoring of mobile
1077 tracking devices and the acquisition of location data
1078 apply to the installation, use, or monitoring of any
1079 devices and the acquisition of location data as
1080 authorized; deleting the definition of “tracking
1081 device”; authorizing any investigative or law
1082 enforcement officer who is specially designated by
1083 certain persons and who makes specified determinations
1084 to engage in real-time location tracking if a search
1085 warrant is later obtained as specified; providing
1086 requirements for engaging in real-time location
1087 tracking; specifying when real-time location tracking
1088 must terminate; reenacting s. 934.22(2)(b), F.S.,
1089 relating to voluntary disclosure of customer
1090 communications or records, to incorporate the
1091 amendments made to ss. 934.03 and 934.07, F.S., in
1092 references thereto; reenacting s. 934.27(1) and (4),
1093 F.S., relating to relief, damages, and defenses for
1094 certain civil actions, to incorporate the amendments
1095 made to ss. 934.09 and 934.21, F.S., in references
1096 thereto; reenacting ss. 934.23(6), 934.24(6) and (7),
1097 934.25(5), and 934.28, F.S., relating to required
1098 disclosures of customer communications or records, a
1099 subscriber or customer filing a motion for certain
1100 relief and customer notification, delayed notice, and
1101 the exclusivity of remedies and sanctions for certain
1102 violations, respectively, to incorporate the amendment
1103 made to s. 934.21, F.S., in references thereto;
1104 providing an effective date.