Florida Senate - 2021 SB 144
By Senator Brandes
24-00046-21 2021144__
1 A bill to be entitled
2 An act relating to searches of cellular phones and
3 other electronic devices; amending s. 933.02, F.S.;
4 expanding the grounds for issuance of a search warrant
5 to include content held within a cellular phone,
6 portable electronic communication device, or
7 microphone-enabled household device when such content
8 constitutes evidence relevant to proving that a felony
9 has been committed; amending s. 933.04, F.S.; adopting
10 the constitutional protection against unreasonable
11 interception of private communications by any means
12 for purposes of obtaining a search warrant; amending
13 s. 934.01, F.S.; revising and providing legislative
14 findings; amending s. 934.02, F.S.; redefining the
15 terms “oral communication” and “electronic
16 communication”; defining the terms “microphone-enabled
17 household device” and “portable electronic
18 communication device”; amending s. 934.03, F.S.;
19 authorizing specified persons to provide information,
20 facilities, or technical assistance to a person
21 authorized by law to intercept wire, oral, or
22 electronic communications if such person has been
23 provided with a search warrant issued by a judge of
24 competent jurisdiction; prohibiting specified persons
25 from disclosing the existence of any interception of a
26 wire, oral, or electronic communication with respect
27 to which the person has been served with a search
28 warrant, rather than a court order; amending s.
29 934.06, F.S.; prohibiting the use of certain
30 communication content in any trial, hearing, or other
31 proceeding which was obtained without a specified
32 warrant; providing an exception; amending s. 934.07,
33 F.S.; authorizing a judge to issue a search warrant,
34 rather than grant a court order, in conformity with
35 specified provisions; authorizing the Department of
36 Law Enforcement to request a law enforcement agency
37 that provided certain information to join the
38 department in seeking a new search warrant; amending
39 s. 934.09, F.S.; requiring that each application for a
40 search warrant, rather than an order, authorizing or
41 approving the interception of wire, oral, or
42 electronic communications be made in writing and state
43 the applicant’s authority; revising the required
44 information that each application for a search warrant
45 must include; authorizing a judge to authorize a
46 search warrant ex parte, rather than an ex parte
47 order, based on the application under certain
48 circumstances; specifying requirements for search
49 warrants, rather than orders, issued under certain
50 circumstances; authorizing an aggrieved person to move
51 to suppress the contents of certain wire, oral, or
52 electronic communications before, as well as during, a
53 trial, hearing, or proceeding; providing for
54 inadmissibility of certain evidence if a certain
55 motion is granted; authorizing a judge of competent
56 jurisdiction to authorize interception within this
57 state under specified circumstances; amending s.
58 934.10, F.S., and reenacting subsection (1), relating
59 to civil remedies; providing that a good faith
60 reliance on a search warrant, rather than a court
61 order, subpoena, or legislative authorization, issued
62 under certain provisions constitutes a complete
63 defense against specified actions; amending s. 934.21,
64 F.S.; revising the exceptions to conduct that
65 constitutes unlawful access to stored communications;
66 conforming a provision to changes made by the act;
67 amending s. 934.42, F.S.; defining the terms
68 “historical location data,” “mobile tracking device,”
69 and “real-time location tracking”; authorizing an
70 investigative or law enforcement officer to apply to a
71 judge of competent jurisdiction for a search warrant,
72 rather than an order, authorizing real-time location
73 tracking or acquisition of historical location data;
74 requiring an application for a search warrant to
75 include a statement setting forth a reasonable period
76 of time the mobile tracking device may be used or the
77 location data may be obtained in real time, not to
78 exceed a specified limit; authorizing a court to
79 grant, for good cause, extensions that do not
80 individually exceed a specified limit; requiring an
81 applicant seeking historical location data to specify
82 a date range for the data sought; deleting a provision
83 requiring a certification to be included in the
84 application; requiring the court, if it finds probable
85 cause and that the application contains the required
86 statements, to grant a search warrant ex parte rather
87 than entering an ex parte order; specifying that the
88 search warrant may authorize real-time location
89 tracking or acquisition of historical location data;
90 providing that the search warrant may authorize the
91 tracking as specified; requiring the search warrant to
92 command the investigative or law enforcement officer
93 to complete any initiation of the location tracking or
94 execution of the search warrant for historical
95 location data authorized by the search warrant within
96 a certain timeframe; providing requirements for the
97 return of the search warrant to the judge and for
98 service of a copy of the search warrant on the person
99 who was tracked or whose property was tracked;
100 providing requirements for returning and serving a
101 search warrant authorizing the acquisition of
102 historical location data; authorizing a court, for
103 good cause, to postpone the notice requirement for a
104 specified time period; requiring that the standards
105 established by Florida courts for the installation,
106 use, or monitoring of mobile tracking devices and the
107 acquisition of location data apply to the
108 installation, use, or monitoring of any device and the
109 acquisition of location data as authorized by certain
110 provisions; deleting the definition of “tracking
111 device”; authorizing any investigative or law
112 enforcement officer who is specially designated by
113 certain persons and who makes specified determinations
114 to engage in real-time location tracking if a search
115 warrant is obtained, as specified, after the tracking
116 has occurred or begins to occur; specifying when real
117 time location tracking must terminate; reenacting s.
118 934.22(2)(b), F.S., relating to voluntary disclosure
119 of customer communications or records, to incorporate
120 the amendments made to ss. 934.03 and 934.07, F.S., in
121 references thereto; reenacting s. 934.27(1) and (4),
122 F.S., relating to relief, damages, and defenses for
123 certain civil actions, to incorporate the amendments
124 made to ss. 934.09 and 934.21, F.S., in references
125 thereto; reenacting ss. 934.23(6), 934.24(6) and (7),
126 934.25(5), and 934.28, F.S., relating to required
127 disclosures of customer communications or records, a
128 subscriber or customer filing a motion for certain
129 relief and customer notification, delayed notice, and
130 the exclusivity of remedies and sanctions for certain
131 violations, respectively, to incorporate the amendment
132 made to s. 934.21, F.S., in references thereto;
133 providing an effective date.
134
135 Be It Enacted by the Legislature of the State of Florida:
136
137 Section 1. Section 933.02, Florida Statutes, is amended to
138 read:
139 933.02 Grounds for issuance of search warrant.—Upon proper
140 affidavits being made, a search warrant may be issued under the
141 provisions of this chapter upon any of the following grounds:
142 (1) When the property shall have been stolen or embezzled
143 in violation of law.;
144 (2) When any property shall have been used:
145 (a) As a means to commit any crime;
146 (b) In connection with gambling, gambling implements and
147 appliances; or
148 (c) In violation of s. 847.011 or other laws in reference
149 to obscene prints and literature.;
150 (3) When any property, or when content held within a
151 cellular phone, a portable electronic communication device as
152 defined in s. 934.02(28), or a microphone-enabled household
153 device as defined in s. 934.02(27), constitutes evidence
154 relevant to proving that a felony has been committed.;
155 (4) When any property is being held or possessed:
156 (a) In violation of any of the laws prohibiting the
157 manufacture, sale, and transportation of intoxicating liquors;
158 (b) In violation of the fish and game laws;
159 (c) In violation of the laws relative to food and drug; or
160 (d) In violation of the laws relative to citrus disease
161 pursuant to s. 581.184.; or
162 (5) When the laws in relation to cruelty to animals, as
163 provided in chapter 828, have been or are violated in any
164 particular building or place.
165
166 This section also applies to any papers or documents used as a
167 means of or in aid of the commission of any offense against the
168 laws of the state.
169 Section 2. Section 933.04, Florida Statutes, is amended to
170 read:
171 933.04 Affidavits.—The right of the people to be secure in
172 their persons, houses, papers, and effects against unreasonable
173 seizures and searches and against the unreasonable interception
174 of private communications by any means may shall not be violated
175 and a no search warrant may not shall be issued except upon
176 probable cause, supported by oath or affirmation particularly
177 describing the place to be searched and the person and thing to
178 be seized.
179 Section 3. Section 934.01, Florida Statutes, is amended to
180 read:
181 934.01 Legislative findings.—On the basis of its own
182 investigations and of published studies, the Legislature makes
183 the following findings:
184 (1) Wire communications are normally conducted through the
185 use of facilities which form part of an intrastate network. The
186 same facilities are used for interstate and intrastate
187 communications.
188 (2) In order to protect effectively the privacy of wire,
189 and oral, and electronic communications, to protect the
190 integrity of court and administrative proceedings, and to
191 prevent the obstruction of intrastate commerce, it is necessary
192 for the Legislature to define the circumstances and conditions
193 under which the interception of wire, and oral, and electronic
194 communications may be authorized and to prohibit any
195 unauthorized interception of such communications and the use of
196 the contents thereof in evidence in courts and administrative
197 proceedings.
198 (3) Organized criminals make extensive use of wire, and
199 oral, and electronic communications in their criminal
200 activities. The interception of such communications to obtain
201 evidence of the commission of crimes or to prevent their
202 commission is an indispensable aid to law enforcement and the
203 administration of justice.
204 (4) To safeguard the privacy of innocent persons, the
205 interception of wire, or oral, or electronic communications when
206 none of the parties to the communication has consented to the
207 interception should be allowed only when authorized by a court
208 of competent jurisdiction and should remain under the control
209 and supervision of the authorizing court. Interception of wire,
210 and oral, and electronic communications should further be
211 limited to certain major types of offenses and specific
212 categories of crime with assurance that the interception is
213 justified and that the information obtained thereby will not be
214 misused.
215 (5) To safeguard the privacy of innocent persons, the
216 Legislature recognizes the subjective expectation of privacy in
217 real-time cell-site location data, real-time precise global
218 positioning system location data, and historical precise global
219 positioning system location data which society is now prepared
220 to accept is objectively reasonable. As such, the law
221 enforcement collection of the precise location of a person,
222 cellular phone, or portable electronic communication device
223 without the consent of the person or owner of the cellular phone
224 or portable electronic communication device should be allowed
225 only when authorized by a search warrant issued by a court of
226 competent jurisdiction and should remain under the control and
227 supervision of the authorizing court.
228 (6) The Legislature recognizes that the use of portable
229 electronic communication devices is growing at a rapidly
230 increasing rate. These devices can store, and encourage the
231 storing of, an almost limitless amount of personal and private
232 information. Often linked to the Internet, these devices are
233 commonly used to access personal and business information and
234 databases in computers and servers that can be located anywhere
235 in the world. The user of a portable electronic communication
236 device has a reasonable and justifiable expectation of privacy
237 in the information that these devices contain.
238 (7) The Legislature recognizes that the use of household
239 electronic devices, including microphone-enabled household
240 devices, is growing rapidly. These devices often contain
241 microphones that listen for and respond to environmental cues.
242 These household devices are generally connected to and
243 communicate through the Internet, resulting in the storage of
244 and accessibility to daily household information in the device
245 itself or in a remote computing service. Persons should not have
246 to choose between using household technological enhancements and
247 conveniences or preserving the right to privacy in their own
248 homes.
249 Section 4. Subsections (2) and (12) of section 934.02,
250 Florida Statutes, are amended, and subsections (27) and (28) are
251 added to that section, to read:
252 934.02 Definitions.—As used in this chapter:
253 (2) “Oral communication” means any oral communication
254 uttered by a person exhibiting an expectation that such
255 communication is not subject to interception under circumstances
256 justifying such expectation, including the use of a microphone
257 enabled household device, and does not mean any public oral
258 communication uttered at a public meeting or any electronic
259 communication.
260 (12) “Electronic communication” means any transfer of
261 signs, signals, writing, images, sounds, data, or intelligence
262 of any nature transmitted in whole or in part by a wire, a
263 radio, a communication tower, a satellite, an electromagnetic, a
264 photoelectronic, or a photooptical system that affects
265 intrastate, interstate, or foreign commerce, but does not
266 include:
267 (a) Any wire or oral communication;
268 (b) Any communication made through a tone-only paging
269 device;
270 (c) Any communication from an electronic or mechanical
271 device which permits the tracking of the movement of a person or
272 an object; or
273 (c)(d) Electronic funds transfer information stored by a
274 financial institution in a communications system used for the
275 electronic storage and transfer of funds.
276 (27) “Microphone-enabled household device” means a device,
277 sensor, or other physical object within a residence which:
278 (a) Is capable of connecting to the Internet, directly or
279 indirectly, or to another connected device;
280 (b) Is capable of creating, receiving, accessing,
281 processing, or storing electronic data or communications;
282 (c) Communicates with, by any means, another device,
283 entity, or individual; and
284 (d) Contains a microphone designed to listen for and
285 respond to environmental cues.
286 (28) “Portable electronic communication device” means an
287 object that may be easily transported or conveyed by a person;
288 is capable of creating, receiving, accessing, processing, or
289 storing electronic data or communications; and communicates
290 with, by any means, another device, entity, or individual.
291 Section 5. Subsection (2) of section 934.03, Florida
292 Statutes, is amended to read:
293 934.03 Interception and disclosure of wire, oral, or
294 electronic communications prohibited.—
295 (2)(a)1. It is lawful under this section and ss. 934.04
296 934.09 for an operator of a switchboard, or an officer,
297 employee, or agent of a provider of wire or electronic
298 communication service whose facilities are used in the
299 transmission of a wire or electronic communication, to
300 intercept, disclose, or use that communication in the normal
301 course of his or her employment while engaged in any activity
302 which is a necessary incident to the rendition of his or her
303 service or to the protection of the rights or property of the
304 provider of that service, except that a provider of wire
305 communication service to the public may not use shall not
306 utilize service observing or random monitoring except for
307 mechanical or service quality control checks.
308 2. Notwithstanding any other law, a provider of wire, oral,
309 or electronic communication service, or an officer, employee, or
310 agent thereof, or landlord, custodian, or other person, may
311 provide information, facilities, or technical assistance to a
312 person authorized by law to intercept wire, oral, or electronic
313 communications if such provider, or an officer, employee, or
314 agent thereof, or landlord, custodian, or other person, has been
315 provided with:
316 a. A court order directing such assistance signed by the
317 authorizing judge; or
318 b. A certification in writing by a person specified in s.
319 934.09(7) that a search no warrant or court order is not
320 required by law, that all statutory requirements have been met,
321 and that the specified assistance is required, setting forth the
322 period of time during which the provision of the information,
323 facilities, or technical assistance is authorized and specifying
324 the information, facilities, or technical assistance required;
325 or
326 b. A search warrant issued by a judge of competent
327 jurisdiction as required by law.
328 3. A provider of wire, oral, or electronic communication
329 service, or an officer, employee, or agent thereof, or landlord,
330 custodian, or other person may not disclose the existence of any
331 interception or the device used to accomplish the interception
332 with respect to which the person has been served with a search
333 warrant furnished an order under this section and ss. 934.04
334 934.09, except as may otherwise be required by legal process and
335 then only after prior notice to the Governor, the Attorney
336 General, the statewide prosecutor, or a state attorney, as may
337 be appropriate. Any such disclosure renders such person liable
338 for the civil damages provided under s. 934.10, and such person
339 may be prosecuted under s. 934.43. An action may not be brought
340 against any provider of wire, oral, or electronic communication
341 service, or an officer, employee, or agent thereof, or landlord,
342 custodian, or other person for providing information,
343 facilities, or assistance in accordance with the terms of a
344 search warrant court order under this section and ss. 934.04
345 934.09.
346 (b) It is lawful under this section and ss. 934.04-934.09
347 for an officer, employee, or agent of the Federal Communications
348 Commission, in the normal course of his or her employment and in
349 discharge of the monitoring responsibilities exercised by the
350 commission in the enforcement of 47 U.S.C. chapter 5, to
351 intercept a wire, oral, or electronic communication transmitted
352 by radio or to disclose or use the information thereby obtained.
353 (c) It is lawful under this section and ss. 934.04-934.09
354 for an investigative or law enforcement officer or a person
355 acting under the direction of an investigative or law
356 enforcement officer to intercept a wire, oral, or electronic
357 communication when such person is a party to the communication
358 or one of the parties to the communication has given prior
359 consent to such interception and the purpose of such
360 interception is to obtain evidence of a criminal act.
361 (d) It is lawful under this section and ss. 934.04-934.09
362 for a person to intercept a wire, oral, or electronic
363 communication when all of the parties to the communication have
364 given prior consent to such interception.
365 (e) It is unlawful to intercept any wire, oral, or
366 electronic communication for the purpose of committing any
367 criminal act.
368 (f) It is lawful under this section and ss. 934.04-934.09
369 for an employee of a telephone company to intercept a wire
370 communication for the sole purpose of tracing the origin of such
371 communication when the interception is requested by the
372 recipient of the communication and the recipient alleges that
373 the communication is obscene, harassing, or threatening in
374 nature. The individual conducting the interception shall notify
375 local police authorities within 48 hours after the time of the
376 interception.
377 (g) It is lawful under this section and ss. 934.04-934.09
378 for an employee of:
379 1. An ambulance service licensed pursuant to s. 401.25, a
380 fire station employing firefighters as defined by s. 633.102, a
381 public utility, a law enforcement agency as defined by s.
382 934.02(10), or any other entity with published emergency
383 telephone numbers;
384 2. An agency operating an emergency telephone number “911”
385 system established pursuant to s. 365.171; or
386 3. The central abuse hotline operated pursuant to s. 39.201
387
388 to intercept and record incoming wire communications; however,
389 such employee may intercept and record incoming wire
390 communications on designated “911” telephone numbers and
391 published nonemergency telephone numbers staffed by trained
392 dispatchers at public safety answering points only. It is also
393 lawful for such employee to intercept and record outgoing wire
394 communications to the numbers from which such incoming wire
395 communications were placed when necessary to obtain information
396 required to provide the emergency services being requested. For
397 the purpose of this paragraph, the term “public utility” has the
398 same meaning as provided in s. 366.02 and includes a person,
399 partnership, association, or corporation now or hereafter owning
400 or operating equipment or facilities in the state for conveying
401 or transmitting messages or communications by telephone or
402 telegraph to the public for compensation.
403 (h) It is lawful shall not be unlawful under this section
404 and ss. 934.04-934.09 for any person:
405 1. To intercept or access an electronic communication made
406 through an electronic communication system that is configured so
407 that such electronic communication is readily accessible to the
408 general public.
409 2. To intercept any radio communication which is
410 transmitted:
411 a. By any station for the use of the general public, or
412 that relates to ships, aircraft, vehicles, or persons in
413 distress;
414 b. By any governmental, law enforcement, civil defense,
415 private land mobile, or public safety communications system,
416 including any police or fire communications system, readily
417 accessible to the general public;
418 c. By a station operating on an authorized frequency within
419 the bands allocated to the amateur, citizens band, or general
420 mobile radio services; or
421 d. By any marine or aeronautical communications system.
422 3. To engage in any conduct which:
423 a. Is prohibited by s. 633 of the Communications Act of
424 1934; or
425 b. Is excepted from the application of s. 705(a) of the
426 Communications Act of 1934 by s. 705(b) of that act.
427 4. To intercept any wire or electronic communication the
428 transmission of which is causing harmful interference to any
429 lawfully operating station of consumer electronic equipment to
430 the extent necessary to identify the source of such
431 interference.
432 5. To intercept, if such person is another user of the same
433 frequency, any radio communication that is not scrambled or
434 encrypted made through a system that utilizes frequencies
435 monitored by individuals engaged in the provision or the use of
436 such system.
437 6. To intercept a satellite transmission that is not
438 scrambled or encrypted and that is transmitted:
439 a. To a broadcasting station for purposes of retransmission
440 to the general public; or
441 b. As an audio subcarrier intended for redistribution to
442 facilities open to the public, but not including data
443 transmissions or telephone calls, when such interception is not
444 for the purposes of direct or indirect commercial advantage or
445 private financial gain.
446 7. To intercept and privately view a private satellite
447 video communication that is not scrambled or encrypted or to
448 intercept a radio communication that is transmitted on
449 frequencies allocated under subpart D of part 74 of the rules of
450 the Federal Communications Commission that is not scrambled or
451 encrypted, if such interception is not for a tortious or illegal
452 purpose or for purposes of direct or indirect commercial
453 advantage or private commercial gain.
454 (i) It is lawful shall not be unlawful under this section
455 and ss. 934.04-934.09:
456 1. To use a pen register or a trap and trace device as
457 authorized under ss. 934.31-934.34 or under federal law; or
458 2. For a provider of electronic communication service to
459 record the fact that a wire or electronic communication was
460 initiated or completed in order to protect such provider,
461 another provider furnishing service toward the completion of the
462 wire or electronic communication, or a user of that service,
463 from fraudulent, unlawful, or abusive use of such service.
464 (j) It is lawful not unlawful under this section and ss.
465 934.04-934.09 for a person acting under color of law to
466 intercept the wire or electronic communications of a computer
467 trespasser which are transmitted to, through, or from a
468 protected computer if:
469 1. The owner or operator of the protected computer
470 authorizes the interception of the communications of the
471 computer trespasser;
472 2. The person acting under color of law is lawfully engaged
473 in an investigation;
474 3. The person acting under color of law has reasonable
475 grounds to believe that the contents of the communications of
476 the computer trespasser will be relevant to the investigation;
477 and
478 4. The interception does not acquire communications other
479 than those transmitted to, through, or from the computer
480 trespasser.
481 (k) It is lawful under this section and ss. 934.04-934.09
482 for a child under 18 years of age to intercept and record an
483 oral communication if the child is a party to the communication
484 and has reasonable grounds to believe that recording the
485 communication will capture a statement by another party to the
486 communication that the other party intends to commit, is
487 committing, or has committed an unlawful sexual act or an
488 unlawful act of physical force or violence against the child.
489 Section 6. Section 934.06, Florida Statutes, is amended to
490 read:
491 934.06 Prohibition of use as evidence of intercepted wire
492 or oral communications; content of cellular phone, microphone
493 enabled household device, or portable electronic communication
494 device; exceptions exception.—Whenever any wire or oral
495 communication has been intercepted, or when the content of a
496 cellular phone, microphone-enabled household device, or portable
497 electronic communication device is obtained without a search
498 warrant supported by probable cause, no part of the contents of
499 such communication or content and no evidence derived therefrom
500 may be received in evidence in any trial, hearing, or other
501 proceeding in or before any court, grand jury, department,
502 officer, agency, regulatory body, legislative committee, or
503 other authority of the state, or a political subdivision
504 thereof, if the disclosure of that information would be in
505 violation of this chapter. The prohibition of use as evidence
506 provided in this section does not apply in cases of prosecution
507 for criminal interception in violation of the provisions of this
508 chapter, or in cases where the content of a cellular phone,
509 microphone-enabled household device, or portable electronic
510 communication device is lawfully obtained under circumstances
511 where a search warrant is not required.
512 Section 7. Subsections (1) and (2) of section 934.07,
513 Florida Statutes, are amended to read:
514 934.07 Authorization for interception of wire, oral, or
515 electronic communications.—
516 (1) The Governor, the Attorney General, the statewide
517 prosecutor, or any state attorney may authorize an application
518 to a judge of competent jurisdiction for, and such judge may
519 issue a search warrant as required by law grant in conformity
520 with ss. 934.03-934.09 an order authorizing or approving the
521 interception of, wire, oral, or electronic communications by:
522 (a) The Department of Law Enforcement or any law
523 enforcement agency as defined in s. 934.02 having responsibility
524 for the investigation of the offense as to which the application
525 is made when such interception may provide or has provided
526 evidence of the commission of the offense of murder, kidnapping,
527 aircraft piracy, arson, gambling, robbery, burglary, theft,
528 dealing in stolen property, criminal usury, bribery, or
529 extortion; any felony violation of ss. 790.161-790.166,
530 inclusive; any violation of s. 787.06; any violation of chapter
531 893; any violation of the provisions of the Florida Anti-Fencing
532 Act; any violation of chapter 895; any violation of chapter 896;
533 any violation of chapter 815; any violation of chapter 847; any
534 violation of s. 827.071; any violation of s. 944.40; or any
535 conspiracy or solicitation to commit any violation of the laws
536 of this state relating to the crimes specifically enumerated in
537 this paragraph.
538 (b) The Department of Law Enforcement, together with other
539 assisting personnel as authorized and requested by the
540 department under s. 934.09(5), for the investigation of the
541 offense as to which the application is made when such
542 interception may provide or has provided evidence of the
543 commission of any offense that may be an act of terrorism or in
544 furtherance of an act of terrorism or evidence of any conspiracy
545 or solicitation to commit any such violation.
546 (2)(a) If, during the course of an interception of
547 communications by a law enforcement agency as authorized under
548 paragraph (1)(a), the law enforcement agency finds that the
549 intercepted communications may provide or have provided evidence
550 of the commission of any offense that may be an act of terrorism
551 or in furtherance of an act of terrorism, or evidence of any
552 conspiracy or solicitation to commit any such violation, the law
553 enforcement agency shall promptly notify the Department of Law
554 Enforcement and apprise the department of the contents of the
555 intercepted communications. The agency notifying the department
556 may continue its previously authorized interception with
557 appropriate minimization, as applicable, and may otherwise
558 assist the department as provided in this section.
559 (b) Upon its receipt of information of the contents of an
560 intercepted communications from a law enforcement agency, the
561 Department of Law Enforcement shall promptly review the
562 information to determine whether the information relates to an
563 actual or anticipated act of terrorism as defined in this
564 section. If, after reviewing the contents of the intercepted
565 communications, there is probable cause that the contents of the
566 intercepted communications meet the criteria of paragraph
567 (1)(b), the Department of Law Enforcement may make application
568 for the interception of wire, oral, or electronic communications
569 consistent with paragraph (1)(b). The department may make an
570 independent new application for interception based on the
571 contents of the intercepted communications. Alternatively, the
572 department may request the law enforcement agency that provided
573 the information to join with the department in seeking a new
574 search warrant as required by law or an amendment of the
575 original interception search warrant order, or may seek
576 additional authority to continue intercepting communications
577 under the direction of the department. In carrying out its
578 duties under this section, the department may use the provisions
579 for an emergency interception provided in s. 934.09(7) if
580 applicable under statutory criteria.
581 Section 8. Section 934.09, Florida Statutes, is amended to
582 read:
583 934.09 Procedure for interception of wire, oral, or
584 electronic communications.—
585 (1) Each application for a search warrant an order
586 authorizing or approving the interception of a wire, oral, or
587 electronic communication under ss. 934.03-934.09 shall be made
588 in writing upon oath or affirmation to a judge of competent
589 jurisdiction and shall state the applicant’s authority to make
590 such application. Each application shall include the following
591 information:
592 (a) The identity of the investigative or law enforcement
593 officer making the application and the officer authorizing the
594 application.
595 (b) A full and complete statement of the facts and
596 circumstances relied upon by the applicant to justify his or her
597 belief that a search warrant an order should be issued,
598 including:
599 1. Details as to the particular offense that has been, is
600 being, or is about to be committed.
601 2. Except as provided in subsection (11), a particular
602 description of the nature and location of the facilities from
603 which, or the place where, the communications are to be
604 intercepted.
605 3. A particular description of the type of communications
606 sought to be intercepted.
607 4. The identity of the person, if known, committing the
608 offense and whose communications are to be intercepted.
609 (c) A full and complete statement as to whether or not
610 other investigative procedures have been tried and failed or why
611 they reasonably appear to be unlikely to succeed if tried or to
612 be too dangerous.
613 (d) A statement of the period of time for which the
614 interception is required to be maintained and, if the nature of
615 the investigation is such that the authorization for
616 interception should not automatically terminate when the
617 described type of communication has been first obtained, a
618 particular description of facts establishing probable cause to
619 believe that additional communications of the same type will
620 occur thereafter.
621 (e) A full and complete statement of the facts concerning
622 all previous applications known to the individual authorizing
623 and making the application, made to any judge for authorization
624 to intercept, or for approval of interceptions of, wire, oral,
625 or electronic communications involving any of the same persons,
626 facilities, or places specified in the application, and the
627 action taken by the judge on each such application.
628 (f) When the application is for the extension of a search
629 warrant an order, a statement setting forth the results thus far
630 obtained from the interception or a reasonable explanation of
631 the failure to obtain such results.
632 (2) The judge may require the applicant to furnish
633 additional testimony or documentary evidence in support of the
634 application.
635 (3) Upon such application, the judge may authorize a search
636 warrant enter an ex parte order, as requested or as modified,
637 authorizing or approving interception of wire, oral, or
638 electronic communications within the territorial jurisdiction of
639 the court in which the judge is sitting, and outside such
640 jurisdiction but within the State of Florida in the case of a
641 mobile interception device authorized by the judge within such
642 jurisdiction, if the judge determines on the basis of the facts
643 submitted by the applicant that:
644 (a) There is probable cause for belief that an individual
645 is committing, has committed, or is about to commit an offense
646 as provided in s. 934.07.
647 (b) There is probable cause for belief that particular
648 communications concerning that offense will be obtained through
649 such interception.
650 (c) Normal investigative procedures have been tried and
651 have failed or reasonably appear to be unlikely to succeed if
652 tried or to be too dangerous.
653 (d) Except as provided in subsection (11), there is
654 probable cause for belief that the facilities from which, or the
655 place where, the wire, oral, or electronic communications are to
656 be intercepted are being used, or are about to be used, in
657 connection with the commission of such offense, or are leased
658 to, listed in the name of, or commonly used by such person.
659 (4) Each search warrant order authorizing or approving the
660 interception of any wire, oral, or electronic communication
661 shall specify:
662 (a) The identity of the person, if known, whose
663 communications are to be intercepted.
664 (b) The nature and location of the communications
665 facilities as to which, or the place where, authority to
666 intercept is granted.
667 (c) A particular description of the type of communication
668 sought to be intercepted and a statement of the particular
669 offense to which it relates.
670 (d) The identity of the agency authorized to intercept the
671 communications and of the person authorizing the application.
672 (e) The period of time during which such interception is
673 authorized, including a statement as to whether or not the
674 interception shall automatically terminate when the described
675 communication has been first obtained.
676
677 A search warrant An order authorizing the interception of a
678 wire, oral, or electronic communication shall, upon the request
679 of the applicant, direct that a provider of wire or electronic
680 communication service, landlord, custodian, or other person
681 shall furnish the applicant forthwith all information,
682 facilities, and technical assistance necessary to accomplish the
683 interception unobtrusively and with a minimum of interference
684 with the services that such service provider, landlord,
685 custodian, or person is according the person whose
686 communications are to be intercepted. The obligation of a
687 provider of wire, oral, or electronic communication service
688 under such a search warrant an order may include, but is not
689 limited to, conducting an in-progress trace during an
690 interception, or providing other assistance to support the
691 investigation as may be specified in the search warrant order.
692 Any provider of wire or electronic communication service,
693 landlord, custodian, or other person furnishing such facilities
694 or technical assistance shall be compensated therefor by the
695 applicant for reasonable expenses incurred in providing such
696 facilities or assistance.
697 (5) A search warrant No order entered under this section
698 may not authorize or approve the interception of any wire, oral,
699 or electronic communication for any period longer than is
700 necessary to achieve the objective of the authorization or in
701 any event longer than 30 days. Such 30-day period begins on the
702 day on which the agent or officer of the law enforcement agency
703 first begins to conduct an interception under the search warrant
704 order or 10 days after the search warrant is approved order is
705 entered, whichever occurs earlier. Extensions of a search
706 warrant an order may be granted but only upon application for an
707 extension made in accordance with subsection (1) and upon the
708 court making the findings required by subsection (3). The period
709 of extension shall be no longer than the authorizing judge deems
710 necessary to achieve the purposes for which it was granted and
711 in no event for longer than 30 days. Every search warrant order
712 and extension thereof shall contain a provision that the
713 authorization to intercept shall be executed as soon as
714 practicable, shall be conducted in such a way as to minimize the
715 interception of communications not otherwise subject to
716 interception under ss. 934.03-934.09, and must terminate upon
717 attainment of the authorized objective or in any event in 30
718 days. If the intercepted communication is in code or foreign
719 language and an expert in that foreign language or code is not
720 reasonably available during the interception period,
721 minimization may be accomplished as soon as practicable after
722 such interception. An interception under ss. 934.03-934.09 may
723 be conducted in whole or in part by government personnel or by
724 an individual operating under a contract with the government,
725 acting under the supervision of an agent or officer of the law
726 enforcement agency authorized to conduct the interception.
727 (6) Whenever a search warrant an order authorizing
728 interception is granted entered pursuant to ss. 934.03-934.09,
729 the search warrant order may require reports to be made to the
730 judge who issued the search warrant order showing what progress
731 has been made toward achievement of the authorized objective and
732 the need for continued interception. Such reports shall be made
733 at such intervals as the judge may require.
734 (7) Notwithstanding any other provision of this chapter,
735 any investigative or law enforcement officer specially
736 designated by the Governor, the Attorney General, the statewide
737 prosecutor, or a state attorney acting under this chapter, who
738 reasonably determines that:
739 (a) An emergency exists that:
740 1. Involves immediate danger of death or serious physical
741 injury to any person, the danger of escape of a prisoner, or
742 conspiratorial activities threatening the security interest of
743 the nation or state; and
744 2. Requires that a wire, oral, or electronic communication
745 be intercepted before a search warrant an order authorizing such
746 interception can, with due diligence, be obtained; and
747 (b) There are grounds upon which a search warrant an order
748 could be entered under this chapter to authorize such
749 interception,
750
751 may intercept such wire, oral, or electronic communication if an
752 application for a search warrant an order approving the
753 interception is made in accordance with this section within 48
754 hours after the interception has occurred or begins to occur. In
755 the absence of a search warrant an order, such interception
756 shall immediately terminate when the communication sought is
757 obtained or when the application for the search warrant order is
758 denied, whichever is earlier. If such application for approval
759 is denied, or in any other case in which the interception is
760 terminated without a search warrant an order having been issued,
761 the contents of any wire, oral, or electronic communication
762 intercepted shall be treated as having been obtained in
763 violation of s. 934.03(4), and an inventory shall be served as
764 provided for in paragraph (8)(e) on the person named in the
765 application.
766 (8)(a) The contents of any wire, oral, or electronic
767 communication intercepted by any means authorized by ss. 934.03
768 934.09 shall, if possible, be recorded on tape or wire or other
769 comparable device. The recording of the contents of any wire,
770 oral, or electronic communication under this subsection shall be
771 kept in such a way as will protect the recording from editing or
772 other alterations. Immediately upon the expiration of the period
773 of the search warrant order, or extensions thereof, such
774 recordings shall be made available to the judge approving the
775 search warrant issuing such order and sealed under his or her
776 directions. Custody of the recordings shall be wherever the
777 judge orders. They may shall not be destroyed except upon an
778 order of the issuing or denying judge, or that judge’s successor
779 in office, and in any event shall be kept for 10 years.
780 Duplicate recordings may be made for use or disclosure pursuant
781 to the provisions of s. 934.08(1) and (2) for investigations, or
782 for purposes of discovery as required by law.
783 (b) The presence of the seal provided for by this
784 subsection, or a satisfactory explanation for the absence
785 thereof, shall be a prerequisite for the use or disclosure of
786 the contents of any wire, oral, or electronic communication or
787 evidence derived therefrom under s. 934.08(3), as required by
788 federal law.
789 (c) Applications made and search warrants orders granted
790 under ss. 934.03-934.09 shall be sealed by the judge. Custody of
791 the applications and search warrants orders shall be wherever
792 the judge directs. As required by federal law, such applications
793 and search warrants orders shall be disclosed only for purposes
794 of discovery or upon a showing of good cause before a judge of
795 competent jurisdiction and may shall not be destroyed except on
796 order of the issuing or denying judge, or that judge’s successor
797 in office, and in any event shall be kept for 10 years.
798 (d) Any violation of the provisions of this subsection may
799 be punished as contempt of the issuing or denying judge.
800 (e) Within a reasonable time but not later than 90 days
801 after the termination of the period of a search warrant an order
802 or extensions thereof, the issuing or denying judge shall cause
803 to be served on the persons named in the search warrant order or
804 the application, and such other parties to intercepted
805 communications as the judge may determine in his or her
806 discretion to be in the interest of justice, an inventory which
807 shall include notice of:
808 1. The fact of the approval of the search warrant entry of
809 the order or the application.
810 2. The date of the approval of the search warrant entry and
811 the period of authorized, approved, or disapproved interception,
812 or the denial of the application.
813 3. The fact that during the period wire, oral, or
814 electronic communications were or were not intercepted.
815
816 The judge, upon the filing of a motion, may make available to
817 such person or the person’s counsel for inspection such portions
818 of the intercepted communications, applications, and search
819 warrants orders as the judge determines to be in the interest of
820 justice. On an ex parte showing of good cause to a judge of
821 competent jurisdiction, the serving of the inventory required by
822 this paragraph may be postponed.
823 (9) As required by federal law, The contents of any
824 intercepted wire, oral, or electronic communication or evidence
825 derived therefrom may shall not be received in evidence or
826 otherwise disclosed in any trial, hearing, or other proceeding
827 unless each party, not less than 10 days before the trial,
828 hearing, or proceeding, has been furnished with a copy of the
829 search warrant court order and accompanying application under
830 which the interception was authorized or approved. This 10-day
831 period may be waived by the judge if he or she finds that it was
832 not possible to furnish the party with the above information 10
833 days before the trial, hearing, or proceeding and that the party
834 will not be prejudiced by the delay in receiving such
835 information.
836 (10)(a) An Any aggrieved person before or in any trial,
837 hearing, or proceeding in or before any court, department,
838 officer, agency, regulatory body, or other authority may move to
839 suppress the contents of any intercepted wire, oral, or
840 electronic communication, or evidence derived therefrom, on the
841 grounds that:
842 1. The communication was unlawfully intercepted;
843 2. The search warrant order of authorization or approval
844 under which it was intercepted is insufficient on its face; or
845 3. The interception was not made in conformity with the
846 search warrant order of authorization or approval.
847 (b) Except as otherwise provided in the applicable Florida
848 Rules of Criminal Procedure, in a criminal matter:
849 1. Such motion shall be made before the trial, hearing, or
850 proceeding unless there was no opportunity to make such motion
851 or the person was not aware of the grounds of the motion.
852 2. If the motion is granted, the contents of the
853 intercepted wire or oral communication, or evidence derived
854 therefrom, shall be treated as having been obtained in violation
855 of ss. 934.03-934.09 and are not admissible as evidence.
856 3. The judge, upon the filing of such motion by the
857 aggrieved person, may make available to the aggrieved person or
858 his or her counsel for inspection such portions of the
859 intercepted communication or evidence derived therefrom as the
860 judge determines to be in the interest of justice.
861 (c)(b) In addition to any other right to appeal, the state
862 shall have the right to appeal from an order granting a motion
863 to suppress made under paragraph (a) or the denial of an
864 application for a search warrant an order of approval if the
865 attorney shall certify to the judge or other official granting
866 such motion or denying such application that the appeal is not
867 taken for purposes of delay. Such appeal shall be taken within
868 30 days after the date the order was entered and shall be
869 diligently prosecuted.
870 (d)(c) The remedies and sanctions described in ss. 934.03
871 934.10 with respect to the interception of electronic
872 communications are the only judicial remedies and sanctions for
873 violations of those sections involving such communications.
874 (11) The requirements of subparagraph (1)(b)2. and
875 paragraph (3)(d) relating to the specification of the facilities
876 from which, or the place where, the communication is to be
877 intercepted do not apply if:
878 (a) In the case of an application with respect to the
879 interception of an oral communication:
880 1. The application is by an agent or officer of a law
881 enforcement agency and is approved by the Governor, the Attorney
882 General, the statewide prosecutor, or a state attorney.
883 2. The application contains a full and complete statement
884 as to why such specification is not practical and identifies the
885 person committing the offense and whose communications are to be
886 intercepted.
887 3. The judge finds that such specification is not
888 practical.
889 (b) In the case of an application with respect to a wire or
890 electronic communication:
891 1. The application is by an agent or officer of a law
892 enforcement agency and is approved by the Governor, the Attorney
893 General, the statewide prosecutor, or a state attorney.
894 2. The application identifies the person believed to be
895 committing the offense and whose communications are to be
896 intercepted and the applicant makes a showing that there is
897 probable cause to believe that the person’s actions could have
898 the effect of thwarting interception from a specified facility
899 or that the person whose communications are to be intercepted
900 has removed, or is likely to remove, himself or herself to
901 another judicial circuit within the state.
902 3. The judge finds that such showing has been adequately
903 made.
904 4. The search warrant order authorizing or approving the
905 interception is limited to interception only for such time as it
906 is reasonable to presume that the person identified in the
907 application is or was reasonably proximate to the instrument
908 through which such communication will be or was transmitted.
909
910 Consistent with this paragraph, a judge of competent
911 jurisdiction may authorize interception within this state,
912 whether the interception is within or outside the court’s
913 jurisdiction, if the application for the interception makes a
914 showing that some activity or conspiracy believed to be related
915 to, or in furtherance of, the criminal predicate for the
916 requested interception has occurred or will likely occur, or the
917 communication to be intercepted or expected to be intercepted is
918 occurring or will likely occur, in whole or in part, within the
919 jurisdiction of the court where the order is being sought.
920 (12) If an interception of a communication is to be carried
921 out pursuant to subsection (11), such interception may not begin
922 until the facilities from which, or the place where, the
923 communication is to be intercepted is ascertained by the person
924 implementing the interception search warrant order. A provider
925 of wire or electronic communications service that has received a
926 search warrant an order as provided under paragraph (11)(b) may
927 petition the court to modify or quash the search warrant order
928 on the ground that the interception cannot be performed in a
929 timely or reasonable fashion. The court, upon notice to the
930 state, shall decide such a petition expeditiously.
931 (13) Consistent with this section, a judge of competent
932 jurisdiction may authorize interception within this state,
933 whether the interception is within or outside the court’s
934 jurisdiction, if the application for the interception makes a
935 showing that some activity or conspiracy believed to be related
936 to, or in furtherance of, the criminal predicate for the
937 requested interception has occurred or will likely occur, or the
938 communication to be intercepted or expected to be intercepted is
939 occurring or will likely occur, in whole or in part, within the
940 jurisdiction of the court where the search warrant is being
941 sought.
942 Section 9. Subsection (2) of section 934.10, Florida
943 Statutes, is amended, and subsection (1) of that section is
944 reenacted, to read:
945 934.10 Civil remedies.—
946 (1) Any person whose wire, oral, or electronic
947 communication is intercepted, disclosed, or used in violation of
948 ss. 934.03-934.09 shall have a civil cause of action against any
949 person or entity who intercepts, discloses, or uses, or procures
950 any other person or entity to intercept, disclose, or use, such
951 communications and shall be entitled to recover from any such
952 person or entity which engaged in that violation such relief as
953 may be appropriate, including:
954 (a) Preliminary or equitable or declaratory relief as may
955 be appropriate;
956 (b) Actual damages, but not less than liquidated damages
957 computed at the rate of $100 a day for each day of violation or
958 $1,000, whichever is higher;
959 (c) Punitive damages; and
960 (d) A reasonable attorney’s fee and other litigation costs
961 reasonably incurred.
962 (2) A good faith reliance on any of the following
963 constitutes a complete defense to any civil, criminal, or
964 administrative action arising out of such conduct under the laws
965 of this state:
966 (a) A search warrant court order, subpoena, or legislative
967 authorization as provided for in ss. 934.03-934.09;,
968 (b) A request of an investigative or law enforcement
969 officer under s. 934.09(7);, or
970 (c) A good faith determination that Florida or federal law,
971 other than 18 U.S.C. s. 2511(2)(d), authorized permitted the
972 conduct complained of
973
974 shall constitute a complete defense to any civil or criminal, or
975 administrative action arising out of such conduct under the laws
976 of this state.
977 Section 10. Section 934.21, Florida Statutes, is amended to
978 read:
979 934.21 Unlawful access to stored communications;
980 penalties.—
981 (1) Except as provided in subsection (3), whoever:
982 (a) Intentionally accesses without authorization a facility
983 through which an electronic communication service is provided,
984 or
985 (b) Intentionally exceeds an authorization to access such
986 facility,
987
988 and thereby obtains, alters, or prevents authorized access to a
989 wire or electronic communication while it is in electronic
990 storage in such system shall be punished as provided in
991 subsection (2).
992 (2) The punishment for an offense under subsection (1) is
993 as follows:
994 (a) If the offense is committed for purposes of commercial
995 advantage, malicious destruction or damage, or private
996 commercial gain, the person is:
997 1. In the case of a first offense under this subsection,
998 commits guilty of a misdemeanor of the first degree, punishable
999 as provided in s. 775.082, s. 775.083, or s. 934.41.
1000 2. In the case of any subsequent offense under this
1001 subsection, commits guilty of a felony of the third degree,
1002 punishable as provided in s. 775.082, s. 775.083, s. 775.084, or
1003 s. 934.41.
1004 (b) In any other case, the person commits is guilty of a
1005 misdemeanor of the second degree, punishable as provided in s.
1006 775.082 or s. 775.083.
1007 (3) Subsection (1) does not apply with respect to conduct
1008 authorized:
1009 (a) By the person or entity providing a wire, an oral, or
1010 an electronic communications service, including through cellular
1011 phones, microphone-enabled household devices, or portable
1012 electronic communication devices;
1013 (b) By a user of a wire, an oral, or an electronic
1014 communications service, including through cellular phones,
1015 microphone-enabled household devices, or portable electronic
1016 communication devices, with respect to a communication of or
1017 intended for that user; or
1018 (c) In s. 934.09, s. 934.23, or s. 934.24;
1019 (d) In chapter 933; or
1020 (e) For accessing for a legitimate business purpose
1021 information that is not personally identifiable or that has been
1022 collected in a way that prevents identification of the user of
1023 the device.
1024 Section 11. Section 934.42, Florida Statutes, is amended to
1025 read:
1026 934.42 Mobile tracking device and location tracking
1027 authorization.—
1028 (1) As used in this section, the term:
1029 (a) “Historical location data” means historical precise
1030 global positioning system location data in the possession of a
1031 provider.
1032 (b) “Mobile tracking device” means an electronic or a
1033 mechanical device that tracks the movement of a person or an
1034 object.
1035 (c) “Real-time location tracking” means the:
1036 1. Installation and use of a mobile tracking device on the
1037 object to be tracked;
1038 2. Acquisition of real-time cell-site location data; or
1039 3. Acquisition of real-time precise global positioning
1040 system location data.
1041 (2)(1) An investigative or law enforcement officer may make
1042 application to a judge of competent jurisdiction for a search
1043 warrant an order authorizing or approving real-time location
1044 tracking or the acquisition of historical location data in the
1045 possession of the provider the installation and use of a mobile
1046 tracking device.
1047 (3)(2) An application under subsection (2) (1) of this
1048 section must include:
1049 (a) A statement of the identity of the applicant and the
1050 identity of the law enforcement agency conducting the
1051 investigation.
1052 (b) A statement setting forth a reasonable period of time
1053 during which the mobile tracking device may be used or the
1054 location data may be obtained in real time, not to exceed 45
1055 days from the date on which the search warrant is issued. The
1056 court may, for good cause, grant one or more extensions for a
1057 reasonable period of time, not to exceed 45 days each. When
1058 seeking historical location data, the applicant must specify a
1059 date range for the data sought certification by the applicant
1060 that the information likely to be obtained is relevant to an
1061 ongoing criminal investigation being conducted by the
1062 investigating agency.
1063 (c) A statement of the offense to which the information
1064 likely to be obtained relates.
1065 (d) A statement as to whether it may be necessary to use
1066 and monitor the mobile tracking device outside the jurisdiction
1067 of the court from which authorization is being sought.
1068 (4)(3) Upon application made as provided under subsection
1069 (3) (2), the court, if it finds probable cause that the
1070 certification and finds that the statements required by
1071 subsection (3) (2) have been made in the application, must grant
1072 a search warrant shall enter an ex parte order authorizing real
1073 time location tracking or the acquisition of historical location
1074 data the installation and use of a mobile tracking device. Such
1075 search warrant order may authorize the location tracking use of
1076 the device within the jurisdiction of the court and outside that
1077 jurisdiction but within the State of Florida if the location
1078 tracking device is initiated installed within the jurisdiction
1079 of the court. The search warrant must command the investigative
1080 or law enforcement officer to complete any initiation of the
1081 location tracking or execution of the search warrant for
1082 historical location data authorized by the search warrant within
1083 a specified period of time not to exceed 10 calendar days.
1084 (5)(4) A court may not require greater specificity or
1085 additional information beyond that which is required by law and
1086 this section as a requisite for issuing a search warrant an
1087 order.
1088 (6) Within 10 days after the timeframe specified in
1089 paragraph (3)(b) has ended, the investigative or law enforcement
1090 officer executing a search warrant must return the search
1091 warrant to the issuing judge. When the search warrant is
1092 authorizing the acquisition of historical location data, the
1093 investigative or law enforcement officer executing the search
1094 warrant must return the search warrant to the issuing judge
1095 within 10 days after receipt of the records. The investigative
1096 or law enforcement officer may do so by reliable electronic
1097 means.
1098 (7) Within 10 days after the timeframe specified in
1099 paragraph (3)(b) has ended, the investigative or law enforcement
1100 officer executing a search warrant must serve a copy of the
1101 search warrant on the person who, or whose property, was
1102 tracked. When the search warrant is authorizing the acquisition
1103 of historical location data, the investigative or law
1104 enforcement officer executing the search warrant must serve a
1105 copy of the search warrant on the person whose data was obtained
1106 within 10 days after receipt of the records. Service may be
1107 accomplished by delivering a copy to the person who, or whose
1108 property, was tracked or whose data was obtained or by leaving a
1109 copy at the person’s residence or usual place of abode with an
1110 individual of suitable age and discretion who resides at that
1111 location and by mailing a copy to the person’s last known
1112 address. Upon a showing of good cause to a court of competent
1113 jurisdiction, the court may grant one or more postponements of
1114 this notice for a period of 90 days each.
1115 (8)(5) The standards established by Florida courts and the
1116 United States Supreme Court for the installation, use, or and
1117 monitoring of mobile tracking devices and the acquisition of
1118 location data shall apply to the installation, use, or
1119 monitoring and use of any device and the acquisition of location
1120 data as authorized by this section.
1121 (6) As used in this section, a “tracking device” means an
1122 electronic or mechanical device which permits the tracking of
1123 the movement of a person or object.
1124 (9)(a) Notwithstanding any other provision of this chapter,
1125 any investigative or law enforcement officer specially
1126 designated by the Governor, the Attorney General, the statewide
1127 prosecutor, or a state attorney acting pursuant to this chapter
1128 who reasonably determines that:
1129 1. An emergency exists which:
1130 a. Involves immediate danger of death or serious physical
1131 injury to any person or the danger of escape of a prisoner; and
1132 b. Requires real-time location tracking before a search
1133 warrant authorizing such tracking can, with due diligence, be
1134 obtained; and
1135 2. There are grounds upon which a search warrant could be
1136 issued under this chapter to authorize such tracking,
1137
1138 may engage in real-time location tracking if, within 48 hours
1139 after the tracking has occurred or begins to occur, a search
1140 warrant approving the tracking is issued in accordance with this
1141 section.
1142 (b) In the absence of an authorizing search warrant, such
1143 tracking must immediately terminate when the information sought
1144 is obtained, when the application for the search warrant is
1145 denied, or when 48 hours have lapsed since the tracking began,
1146 whichever is earlier.
1147 Section 12. For the purpose of incorporating the amendments
1148 made by this act to sections 934.03 and 934.07, Florida
1149 Statutes, in references thereto, paragraph (b) of subsection (2)
1150 of section 934.22, Florida Statutes, is reenacted to read:
1151 934.22 Voluntary disclosure of customer communications or
1152 records.—
1153 (2) A provider described in subsection (1) may divulge the
1154 contents of a communication:
1155 (b) As otherwise authorized in s. 934.03(2)(a), s. 934.07,
1156 or s. 934.23.
1157 Section 13. For the purpose of incorporating the amendments
1158 made by this act to sections 934.09 and 934.21, Florida
1159 Statutes, in references thereto, subsections (1) and (4) of
1160 section 934.27, Florida Statutes, are reenacted to read:
1161 934.27 Civil action: relief; damages; defenses.—
1162 (1) Except as provided in s. 934.23(5), any provider of
1163 electronic communication service, or subscriber or customer
1164 thereof, aggrieved by any violation of ss. 934.21-934.28 in
1165 which the conduct constituting the violation is engaged in with
1166 a knowing or intentional state of mind may, in a civil action,
1167 recover from the person or entity which engaged in that
1168 violation such relief as is appropriate.
1169 (4) A good faith reliance on any of the following is a
1170 complete defense to any civil or criminal action brought under
1171 ss. 934.21-934.28:
1172 (a) A court warrant or order, a subpoena, or a statutory
1173 authorization, including, but not limited to, a request of an
1174 investigative or law enforcement officer to preserve records or
1175 other evidence, as provided in s. 934.23(7).
1176 (b) A request of an investigative or law enforcement
1177 officer under s. 934.09(7).
1178 (c) A good faith determination that s. 934.03(3) permitted
1179 the conduct complained of.
1180 Section 14. For the purpose of incorporating the amendment
1181 made by this act to section 934.21, Florida Statutes, in a
1182 reference thereto, subsection (6) of section 934.23, Florida
1183 Statutes, is reenacted to read:
1184 934.23 Required disclosure of customer communications or
1185 records.—
1186 (6) No cause of action shall lie in any court against any
1187 provider of wire or electronic communication service, its
1188 officers, employees, agents, or other specified persons for
1189 providing information, facilities, or assistance in accordance
1190 with the terms of a court order, warrant, subpoena, or
1191 certification under ss. 934.21-934.28.
1192 Section 15. For the purpose of incorporating the amendment
1193 made by this act to section 934.21, Florida Statutes, in
1194 references thereto, subsections (6) and (7) of section 934.24,
1195 Florida Statutes, are reenacted to read:
1196 934.24 Backup preservation; customer notification;
1197 challenges by customer.—
1198 (6) Within 14 days after notice by the investigative or law
1199 enforcement officer to the subscriber or customer under
1200 subsection (2), the subscriber or customer may file a motion to
1201 quash the subpoena or vacate the court order seeking contents of
1202 electronic communications, with copies served upon the
1203 investigative or law enforcement officer and with written notice
1204 of such challenge to the service provider. A motion to vacate a
1205 court order must be filed in the court which issued the order. A
1206 motion to quash a subpoena must be filed in the circuit court in
1207 the circuit from which the subpoena issued. Such motion or
1208 application must contain an affidavit or sworn statement:
1209 (a) Stating that the applicant is a subscriber or customer
1210 of the service from which the contents of electronic
1211 communications maintained for her or him have been sought, and
1212 (b) Stating the applicant’s reasons for believing that the
1213 records sought are not relevant to a legitimate law enforcement
1214 inquiry or that there has not been substantial compliance with
1215 the provisions of ss. 934.21-934.28 in some other respect.
1216 (7) Except as otherwise obtained under paragraph (3)(a),
1217 service must be made under this section upon an investigative or
1218 law enforcement officer by delivering or mailing by registered
1219 or certified mail a copy of the papers to the person, office, or
1220 department specified in the notice which the subscriber or
1221 customer has received pursuant to ss. 934.21-934.28. For the
1222 purposes of this subsection, the term “delivering” shall be
1223 construed in accordance with the definition of “delivery” as
1224 provided in Rule 1.080, Florida Rules of Civil Procedure.
1225 Section 16. For the purpose of incorporating the amendment
1226 made by this act to section 934.21, Florida Statutes, in a
1227 reference thereto, subsection (5) of section 934.25, Florida
1228 Statutes, is reenacted to read:
1229 934.25 Delayed notice.—
1230 (5) Upon the expiration of the period of delay of
1231 notification under subsection (1) or subsection (4), the
1232 investigative or law enforcement officer must serve upon or
1233 deliver by registered or first-class mail to the subscriber or
1234 customer a copy of the process or request together with notice
1235 which:
1236 (a) States with reasonable specificity the nature of the
1237 law enforcement inquiry, and
1238 (b) Informs the subscriber or customer:
1239 1. That information maintained for such subscriber or
1240 customer by the service provider named in the process or request
1241 was supplied to or requested by the investigative or law
1242 enforcement officer and the date on which such information was
1243 so supplied or requested.
1244 2. That notification of such subscriber or customer was
1245 delayed.
1246 3. What investigative or law enforcement officer or what
1247 court made the certification or determination pursuant to which
1248 that delay was made.
1249 4. Which provision of ss. 934.21-934.28 allowed such delay.
1250 Section 17. For the purpose of incorporating the amendment
1251 made by this act to section 934.21, Florida Statutes, in a
1252 reference thereto, section 934.28, Florida Statutes, is
1253 reenacted to read:
1254 934.28 Exclusivity of remedies and sanctions.—The remedies
1255 and sanctions described in ss. 934.21-934.27 are the only
1256 judicial remedies and sanctions for violation of those sections.
1257 Section 18. This act shall take effect July 1, 2021.