Senate Bill 1934

CODING: Words stricken are deletions; words underlined are additions.



    Florida Senate - 1999                                  SB 1934

    By Senator Brown-Waite





    10-1057-99

  1                      A bill to be entitled

  2         An act relating to security of communications;

  3         amending s. 934.02, F.S.; redefining the terms

  4         "wire communication," "electronic, mechanical,

  5         or other device," and "electronic

  6         communication"; amending s. 934.03, F.S.;

  7         prohibiting intentional disclosure of certain

  8         communications; prescribing circumstances in

  9         which a person may aid in intercepting a

10         communication; providing penalties; amending s.

11         934.09, F.S.; prescribing additional procedures

12         for interception of communications; amending s.

13         934.10, F.S.; providing an additional defense

14         against civil liability; amending s. 934.23,

15         F.S.; requiring providers of electronic

16         communications or remote computing services to

17         provide certain assistance; providing

18         additional grounds for issuance of a court

19         order; amending s. 934.27, F.S.; providing an

20         additional defense against civil or criminal

21         liability; amending s. 934.31, F.S.; providing

22         duties of officers authorized to install and

23         use pen registers; amending s. 934.34, F.S.;

24         providing for assistance in the use of a per

25         register or trap and trace device; creating s.

26         934.35, F.S.; providing guidelines and

27         standards for emergency installation of pen

28         registers and trap and trace devices; providing

29         an effective date.

30

31  Be It Enacted by the Legislature of the State of Florida:

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                                  SB 1934
    10-1057-99




  1         Section 1.  Subsections (1), (4), and (12) of section

  2  934.02, Florida Statutes, are amended to read:

  3         934.02  Definitions.--As used in this chapter:

  4         (1)  "Wire communication" means any aural transfer made

  5  in whole or in part through the use of facilities for the

  6  transmission of communications by the aid of wire, cable, or

  7  other like connection between the point of origin and the

  8  point of reception including the use of such connection in a

  9  switching station furnished or operated by any person engaged

10  in providing or operating such facilities for the transmission

11  of intrastate, interstate, or foreign communications or

12  communications affecting intrastate, interstate, or foreign

13  commerce.  Such term includes any electronic storage of such

14  communication but does not include the radio portion of a

15  cordless telephone communication that is transmitted between

16  the cordless telephone handset and the base unit.

17         (4)  "Electronic, mechanical, or other device" means

18  any device or apparatus which can be used to intercept a wire,

19  electronic, or oral communication other than:

20         (a)  Any telephone or telegraph instrument, equipment,

21  or facility, or any component thereof:

22         1.  Furnished to the subscriber or user by a provider

23  of wire or electronic communication service in the ordinary

24  course of its business and being used by the subscriber or

25  user in the ordinary course of its business or furnished by

26  such subscriber or user for connection to the facilities of

27  such service and used in the ordinary course of its business;

28  or

29         2.  Being used by a provider of wire or electronic

30  communications service communications common carrier in the

31  ordinary course of its business or by an investigative or law

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                                  SB 1934
    10-1057-99




  1  enforcement officer in the ordinary course of her or his

  2  duties.

  3         (b)  A hearing aid or similar device being used to

  4  correct subnormal hearing to not better than normal.

  5         (12)  "Electronic communication" means any transfer of

  6  signs, signals, writing, images, sounds, data, or intelligence

  7  of any nature transmitted in whole or in part by a wire,

  8  radio, electromagnetic, photoelectronic, or photooptical

  9  system that affects intrastate, interstate, or foreign

10  commerce, but does not include:

11         (a)  The radio portion of a cordless telephone

12  communication that is transmitted between the cordless

13  telephone handset and the base unit;

14         (a)(b)  Any wire or oral communication;

15         (b)(c)  Any communication made through a tone-only

16  paging device; or

17         (c)(d)  Any communication from an electronic or

18  mechanical device which permits the tracking of the movement

19  of a person or an object; or.

20         (d)  Electronic funds transfer information stored by a

21  financial institution in a communications system used for the

22  electronic storage and transfer of funds.

23         Section 2.  Subsection (1), paragraphs (a) and (e) of

24  subsection (2), and subsection (4) of section 934.03, Florida

25  Statutes, are amended to read:

26         934.03  Interception and disclosure of wire, oral, or

27  electronic communications prohibited.--

28         (1)  Except as otherwise specifically provided in this

29  chapter, any person who:

30

31

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                                  SB 1934
    10-1057-99




  1         (a)  Intentionally intercepts, endeavors to intercept,

  2  or procures any other person to intercept or endeavor to

  3  intercept any wire, oral, or electronic communication;

  4         (b)  Intentionally uses, endeavors to use, or procures

  5  any other person to use or endeavor to use any electronic,

  6  mechanical, or other device to intercept any oral

  7  communication when:

  8         1.  Such device is affixed to, or otherwise transmits a

  9  signal through, a wire, cable, or other like connection used

10  in wire communication; or

11         2.  Such device transmits communications by radio or

12  interferes with the transmission of such communication;

13         (c)  Intentionally discloses, or endeavors to disclose,

14  to any other person the contents of any wire, oral, or

15  electronic communication, knowing or having reason to know

16  that the information was obtained through the interception of

17  a wire, oral, or electronic communication in violation of this

18  subsection; or

19         (d)  Intentionally uses, or endeavors to use, the

20  contents of any wire, oral, or electronic communication,

21  knowing or having reason to know that the information was

22  obtained through the interception of a wire, oral, or

23  electronic communication in violation of this subsection; or

24         (e)  Intentionally discloses, or endeavors to disclose,

25  to any other person the contents of any wire, oral, or

26  electronic communication intercepted by means authorized by

27  subparagraph (2)(a)2., paragraph (2)(b) or (c), s. 934.07, or

28  s. 934.09 when that person: knows or has reason to know that

29  the information was obtained through the interception of such

30  a communication in connection with a criminal investigation,

31  has obtained or received the information in connection with a

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                                  SB 1934
    10-1057-99




  1  criminal investigation, and intends to improperly obstruct,

  2  impede, or interfere with a duly authorized criminal

  3  investigation;

  4

  5  shall be punished as provided in subsection (4).

  6         (2)(a)1.  It is lawful under ss. 934.03-934.09 for an

  7  operator of a switchboard, or an officer, employee, or agent

  8  of a provider of wire or electronic communication service

  9  whose facilities are used in the transmission of a wire or

10  electronic communication, to intercept, disclose, or use that

11  communication in the normal course of his or her employment

12  while engaged in any activity which is a necessary incident to

13  the rendition of his or her service or to the protection of

14  the rights or property of the provider of that service, except

15  that a provider of wire communication service to the public

16  shall not utilize service observing or random monitoring

17  except for mechanical or service quality control checks.

18         2.  Notwithstanding any other law, a provider of wire,

19  oral, or electronic communication service, or an officer,

20  employee, or agent thereof, or landlord, custodian, or other

21  person, may provide information, facilities, or technical

22  assistance to a person authorized by law to intercept wire,

23  oral, or electronic communications if such provider, or an

24  officer, employee, or agent thereof, or landlord, custodian,

25  or other person, has been provided with:

26         a.  A court order directing such assistance signed by

27  the authorizing judge, or

28         b.  A certification in writing by a person specified in

29  s. 934.09(7) that no warrant or court order is required by

30  law, that all statutory requirements have been met, and that

31  the specified assistance is required

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                                  SB 1934
    10-1057-99




  1

  2  setting forth the period of time during which the provision of

  3  the information, facilities, or technical assistance is

  4  authorized and specifying the information, facilities, or

  5  technical assistance required.

  6         3.  A provider of wire, oral, or electronic

  7  communication service, or an officer, employee, or agent

  8  thereof, or landlord, custodian, or other person may not

  9  disclose the existence of any interception or the device used

10  to accomplish the interception with respect to which the

11  person has been furnished an order under ss. 934.03-934.09,

12  except as may otherwise be required by legal process and then

13  only after prior notice to the Governor, the Attorney General,

14  the statewide prosecutor, or a state attorney, as may be

15  appropriate.  Any such disclosure renders such person liable

16  for the civil damages provided under s. 934.10 and such person

17  may be prosecuted under s. 934.43.  An action may not be

18  brought against any provider of wire, oral, or electronic

19  communication service, or an officer, employee, or agent

20  thereof, or landlord, custodian, or other person for providing

21  information, facilities, or assistance in accordance with the

22  terms of a court order under ss. 934.03-934.09.

23         (e)  It is unlawful to intercept any wire, oral, or

24  electronic communication for the purpose of committing any

25  criminal act.

26         (4)(a)  Except as provided in paragraph (b), whoever

27  violates subsection (1) is guilty of a felony of the third

28  degree, punishable as provided in s. 775.082, s. 775.083, s.

29  775.084, or s. 934.41.

30         (b)  If the offense is a first offense under paragraph

31  (a) and is not for any tortious or illegal purpose or for

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                                  SB 1934
    10-1057-99




  1  purposes of direct or indirect commercial advantage or private

  2  commercial gain, and the wire or electronic communication with

  3  respect to which the offense under paragraph (a) was committed

  4  is a radio communication that is not scrambled, or encrypted,

  5  or transmitted using modulation techniques the essential

  6  parameters of which have been withheld from the public with

  7  the intention of preserving the privacy of such communication,

  8  then:

  9         1.  If the communication is not the radio portion of a

10  cellular telephone communication, a cordless telephone

11  communication that is transmitted between the cordless

12  telephone handset and the base unit, a public land mobile

13  radio service communication, or a paging service

14  communication, and the conduct is not that described in

15  subparagraph (2)(h)7., the person committing the offense is

16  guilty of a misdemeanor of the first degree, punishable as

17  provided in s. 775.082 or s. 775.083.

18         2.  If the communication is the radio portion of a

19  cellular telephone communication, a cordless telephone

20  communication that is transmitted between the cordless

21  telephone handset and the base unit, a public land mobile

22  radio service communication, or a paging service

23  communication, the person committing the offense is guilty of

24  a misdemeanor of the second degree, punishable as provided in

25  s. 775.082 or s. 775.083.

26         Section 3.  Paragraph (b) of subsection (1) and

27  paragraph (d) of subsection (3) of section 934.09, Florida

28  Statutes, are amended, present subsections (7) through (11) of

29  that section are renumbered subsections (8) through (12),

30  respectively, and amended, and a new subsection (7) is added

31  to that section, to read:

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                                  SB 1934
    10-1057-99




  1         934.09  Procedure for interception of wire, oral, or

  2  electronic communications.--

  3         (1)  Each application for an order authorizing or

  4  approving the interception of a wire, oral, or electronic

  5  communication under ss. 934.03-934.09 shall be made in writing

  6  upon oath or affirmation to a judge of competent jurisdiction

  7  and shall state the applicant's authority to make such

  8  application.  Each application shall include the following

  9  information:

10         (b)  A full and complete statement of the facts and

11  circumstances relied upon by the applicant to justify his or

12  her belief that an order should be issued, including:

13         1.  Details as to the particular offense that has been,

14  is being, or is about to be committed.

15         2.  Except as provided in subsection (11) (10), a

16  particular description of the nature and location of the

17  facilities from which, or the place where, the communications

18  are to be intercepted.

19         3.  A particular description of the type of

20  communications sought to be intercepted.

21         4.  The identity of the person, if known, committing

22  the offense and whose communications are to be intercepted.

23         (3)  Upon such application, the judge may enter an ex

24  parte order, as requested or as modified, authorizing or

25  approving interception of wire, oral, or electronic

26  communications within the territorial jurisdiction of the

27  court in which the judge is sitting, and outside such

28  jurisdiction but within the State of Florida in the case of a

29  mobile interception device authorized by the judge within such

30  jurisdiction, if the judge determines on the basis of the

31  facts submitted by the applicant that:

                                  8

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                                  SB 1934
    10-1057-99




  1         (d)  Except as provided in subsection (11) (10), there

  2  is probable cause for belief that the facilities from which,

  3  or the place where, the wire, oral, or electronic

  4  communications are to be intercepted are being used, or are

  5  about to be used, in connection with the commission of such

  6  offense, or are leased to, listed in the name of, or commonly

  7  used by such person.

  8         (7)  Notwithstanding any other provision of this

  9  chapter, any investigative or law enforcement officer

10  specifically designated by the Governor, the Attorney General,

11  the statewide prosecutor, or a state attorney acting under

12  this chapter, who reasonably determines that:

13         (a)  An emergency exists which involves immediate

14  danger of death or serious physical injury to any person;

15  involves conspiratorial activities characteristic of organized

16  crime; or involves the danger of escape of a prisoner which

17  requires that a wire, oral, or electronic communication be

18  intercepted before an order authorizing such interception can,

19  with due diligence, be obtained, and

20         (b)  There are grounds upon which an order could be

21  entered under this chapter to authorize such interception

22

23  may intercept such wire, oral, or electronic communication if

24  an application for an order approving the interception is made

25  in accordance with this section within 48 hours after the

26  interception has occurred or begins to occur. In the absence

27  of an order, such interception shall immediately terminate

28  when the communication sought is obtained or when the

29  application for the order is denied, whichever is earlier. If

30  such application for approval is denied, or in any other case

31  in which the interception is terminated without an order

                                  9

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                                  SB 1934
    10-1057-99




  1  having been issued, the contents of any wire, oral, or

  2  electronic communication intercepted shall be treated as

  3  having been obtained in violation of s. 934.03(4), and an

  4  inventory shall be served as provided for in paragraph (8)(e)

  5  on the person named in the application.

  6         (8)(a)(7)(a)  The contents of any wire, oral, or

  7  electronic communication intercepted by any means authorized

  8  by ss. 934.03-934.09 shall, if possible, be recorded on tape

  9  or wire or other comparable device.  The recording of the

10  contents of any wire, oral, or electronic communication under

11  this subsection shall be kept in such a way as will protect

12  the recording from editing or other alterations.  Immediately

13  upon the expiration of the period of the order, or extensions

14  thereof, such recordings shall be made available to the judge

15  issuing such order and sealed under his or her directions.

16  Custody of the recordings shall be wherever the judge orders.

17  They shall not be destroyed except upon an order of the

18  issuing or denying judge, or that judge's successor in office,

19  and in any event shall be kept for 10 years. Duplicate

20  recordings may be made for use or disclosure pursuant to the

21  provisions of s. 934.08(1) and (2) for investigations.

22         (b)  The presence of the seal provided for by this

23  subsection, or a satisfactory explanation for the absence

24  thereof, shall be a prerequisite for the use or disclosure of

25  the contents of any wire, oral, or electronic communication or

26  evidence derived therefrom under s. 934.08(3), as required by

27  federal law.

28         (c)  Applications made and orders granted under ss.

29  934.03-934.09 shall be sealed by the judge. Custody of the

30  applications and orders shall be wherever the judge directs.

31  As required by federal law, such applications and orders shall

                                  10

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                                  SB 1934
    10-1057-99




  1  be disclosed only upon a showing of good cause before a judge

  2  of competent jurisdiction and shall not be destroyed except on

  3  order of the issuing or denying judge, or that judge's

  4  successor in office, and in any event shall be kept for 10

  5  years.

  6         (d)  Any violation of the provisions of this subsection

  7  may be punished as contempt of the issuing or denying judge.

  8         (e)  Within a reasonable time but not later than 90

  9  days after the termination of the period of an order or

10  extensions thereof, the issuing or denying judge shall cause

11  to be served on the persons named in the order or the

12  application, and such other parties to intercepted

13  communications as the judge may determine in his or her

14  discretion to be in the interest of justice, an inventory

15  which shall include notice of:

16         1.  The fact of the entry of the order or the

17  application.

18         2.  The date of the entry and the period of authorized,

19  approved, or disapproved interception, or the denial of the

20  application.

21         3.  The fact that during the period wire, oral, or

22  electronic communications were or were not intercepted.

23

24  The judge, upon the filing of a motion, may make available to

25  such person or the person's counsel for inspection such

26  portions of the intercepted communications, applications, and

27  orders as the judge determines to be in the interest of

28  justice.  On an ex parte showing of good cause to a judge of

29  competent jurisdiction, the serving of the inventory required

30  by this paragraph may be postponed.

31

                                  11

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                                  SB 1934
    10-1057-99




  1         (9)(8)  As required by federal law, the contents of any

  2  intercepted wire, oral, or electronic communication or

  3  evidence derived therefrom shall not be received in evidence

  4  or otherwise disclosed in any trial, hearing, or other

  5  proceeding unless each party, not less than 10 days before the

  6  trial, hearing, or proceeding, has been furnished with a copy

  7  of the court order and accompanying application under which

  8  the interception was authorized or approved. This 10-day

  9  period may be waived by the judge if he or she finds that it

10  was not possible to furnish the party with the above

11  information 10 days before the trial, hearing, or proceeding

12  and that the party will not be prejudiced by the delay in

13  receiving such information.

14         (10)(a)(9)(a)  Any aggrieved person in any trial,

15  hearing, or proceeding in or before any court, department,

16  officer, agency, regulatory body, or other authority may move

17  to suppress the contents of any intercepted wire, oral, or

18  electronic communication, or evidence derived therefrom, on

19  the grounds that:

20         1.  The communication was unlawfully intercepted;

21         2.  The order of authorization or approval under which

22  it was intercepted is insufficient on its face; or

23         3.  The interception was not made in conformity with

24  the order of authorization or approval.

25

26  Such motion shall be made before the trial, hearing, or

27  proceeding unless there was no opportunity to make such motion

28  or the person was not aware of the grounds of the motion.  If

29  the motion is granted, the contents of the intercepted wire or

30  oral communication, or evidence derived therefrom, shall be

31  treated as having been obtained in violation of ss.

                                  12

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                                  SB 1934
    10-1057-99




  1  934.03-934.09.  The judge, upon the filing of such motion by

  2  the aggrieved person, may make available to the aggrieved

  3  person or his or her counsel for inspection such portions of

  4  the intercepted communication or evidence derived therefrom as

  5  the judge determines to be in the interest of justice.

  6         (b)  In addition to any other right to appeal, the

  7  state shall have the right to appeal from an order granting a

  8  motion to suppress made under paragraph (a) or the denial of

  9  an application for an order of approval if the attorney shall

10  certify to the judge or other official granting such motion or

11  denying such application that the appeal is not taken for

12  purposes of delay. Such appeal shall be taken within 30 days

13  after the date the order was entered and shall be diligently

14  prosecuted.

15         (c)  The remedies and sanctions described in ss.

16  934.03-934.10 with respect to the interception of electronic

17  communications are the only judicial remedies and sanctions

18  for violations of those sections involving such

19  communications.

20         (11)(10)  The requirements of subparagraph (1)(b)2. and

21  paragraph (3)(d) relating to the specification of the

22  facilities from which, or the place where, the communication

23  is to be intercepted do not apply if:

24         (a)  In the case of an application with respect to the

25  interception of an oral communication:

26         1.  The application is by an agent or officer of a law

27  enforcement agency and is approved by the Governor, the

28  Attorney General, the statewide prosecutor, or a state

29  attorney.

30         2.  The application contains a full and complete

31  statement as to why such specification is not practical and

                                  13

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                                  SB 1934
    10-1057-99




  1  identifies the person committing the offense and whose

  2  communications are to be intercepted.

  3         3.  The judge finds that such specification is not

  4  practical.

  5         (b)  In the case of an application with respect to a

  6  wire or electronic communication:

  7         1.  The application is by an agent or officer of a law

  8  enforcement agency and is approved by the Governor, the

  9  Attorney General, the statewide prosecutor, or a state

10  attorney;.

11         2.  The application identifies the person believed to

12  be committing the offense and whose communications are to be

13  intercepted and the applicant makes a showing that there is

14  probable cause to believe that the person's actions could have

15  the effect of thwarting interception from a specified

16  facility; of a purpose, on the part of that person, to thwart

17  interception by changing facilities.

18         3.  The judge finds that such showing has been

19  adequately made; and purpose has been adequately shown.

20         4.  The order authorizing or approving the interception

21  is limited to interception only for such time as it is

22  reasonable to presume that the person identified in the

23  application is or was reasonably proximate to the instrument

24  through which such communication will be or was transmitted.

25         (12)(11)  If an interception of a communication is to

26  be carried out pursuant to subsection (11)(a) (10), such

27  interception may not begin until the facilities from which, or

28  the place where, the communication is to be intercepted is

29  ascertained by the person implementing the interception order.

30  A provider of wire or electronic communications service that

31  has received an order as provided under paragraph (11)(b)

                                  14

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                                  SB 1934
    10-1057-99




  1  (10)(b) may petition the court to modify or quash the order on

  2  the ground that the interception cannot be performed in a

  3  timely or reasonable fashion.  The court, upon notice to the

  4  state, shall decide such a petition expeditiously.

  5         Section 4.  Subsection (2) of section 934.10, Florida

  6  Statutes, is amended to read:

  7         934.10  Civil remedies.--

  8         (2)  A good faith reliance on:

  9         (a)  A court order, subpoena, or legislative

10  authorization as provided in ss. 934.03-934.09;, or

11         (b)  A request of an investigative or law enforcement

12  officer under s. 943.09(7); or

13         (c)(b)  A good faith determination that federal or

14  Florida law permitted the conduct complained of

15

16  shall constitute a complete defense to any civil or criminal,

17  or administrative action arising out of such conduct under the

18  laws of this state.

19         Section 5.  Subsections (4) and (5) of section 934.23,

20  Florida Statutes, are amended, and subsection (7) is added to

21  that section, to read:

22         934.23  Requirements for governmental access.--

23         (4)(a)  Except as provided in paragraph (b), a provider

24  of electronic communication service or remote computing

25  service may disclose a record or other information pertaining

26  to a subscriber or customer of such service, not including the

27  contents of communication covered by subsection (1) or

28  subsection (2), to any person other than an investigative or

29  law enforcement officer.

30         (b)  A provider of electronic communication service or

31  remote computing service shall disclose a record or other

                                  15

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                                  SB 1934
    10-1057-99




  1  information pertaining to a subscriber to or customer of such

  2  service, not including the contents of communications covered

  3  by subsection (1) or subsection (2), to an investigative or

  4  law enforcement officer only when the investigative or law

  5  enforcement officer:

  6         1.  Uses a subpoena;

  7         1.2.  Obtains a warrant issued by the judge of a court

  8  of competent jurisdiction;

  9         2.3.  Obtains a court order for such disclosure under

10  subsection (5); or

11         3.4.  Has the consent of the subscriber or customer to

12  such disclosure.

13         (c)  A provider of electronic communication service or

14  remote computing service shall disclose to an investigative or

15  law enforcement officer the name, address, telephone toll

16  billing records, telephone number or other subscriber number

17  or identity, and length of service as a subscriber or customer

18  of such service and the types of services the subscriber or

19  customer used when the governmental entity uses a subpoena.

20         (d)(c)  An investigative or law enforcement officer who

21  receives records or information under this subsection is not

22  required to provide notice to a subscriber or customer.

23         (5)  A court order for disclosure under subsection (2),

24  subsection (3), or subsection (4) shall issue only if the

25  investigative or law enforcement officer offers specific and

26  articulable facts showing that there are reasonable grounds

27  shows that there is reason to believe the contents of a wire

28  or electronic communication or the records of other

29  information sought are relevant and material to an ongoing

30  criminal investigation to a legitimate law enforcement

31  inquiry.  A court issuing an order pursuant to this section,

                                  16

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                                  SB 1934
    10-1057-99




  1  on a motion made promptly by the service provider, may quash

  2  or modify such order on motion made promptly by the service

  3  provider if the information or records requested are unusually

  4  voluminous in nature or compliance with such order otherwise

  5  would cause an undue burden on such provider.

  6         (7)(a)  A provider of wire or electronic communication

  7  services or a remote computing service, upon the request of an

  8  investigative or law enforcement officer, shall take all

  9  necessary steps to preserve records and other evidence in its

10  possession pending the issuance of a court order or other

11  process.

12         (b)  Records referred to in paragraph (a) shall be

13  retained for a period of 90 days, which shall be extended for

14  an additional 90-day period upon a renewed request by an

15  investigative or law enforcement officer.

16         Section 6.  Subsection (4) of section 934.27, Florida

17  Statutes, is amended to read:

18         934.27  Civil action:  relief; damages; defenses.--

19         (4)  A good faith reliance on any of the following is a

20  complete defense to any civil or criminal action brought under

21  ss. 934.21-934.28:

22         (a)  A court warrant or order, a subpoena, or a

23  statutory authorization.

24         (b)  A request of an investigative or law enforcement

25  officer under s. 934.09(7).

26         (c)(b)  A good faith determination that s. 934.03(3)

27  permitted the conduct complained of.

28         Section 7.  Present subsection (3) of section 934.31,

29  Florida Statutes, is renumbered as subsection (4), and a new

30  subsection (3) is added to that section, to read:

31

                                  17

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                                  SB 1934
    10-1057-99




  1         934.31  General prohibition on pen register and trap

  2  and trace device use; exception.--

  3         (3)  An investigative or law enforcement officer

  4  authorized to install and use a pen register under ss.

  5  934.31-934.34 shall use technology reasonably available to him

  6  or her which restricts the recording or decoding of electronic

  7  or other impulses to the dialing and signaling information

  8  used in call processing.

  9         Section 8.  Subsection (2) of section 934.34, Florida

10  Statutes, is amended to read:

11         934.34  Assistance in installation and use of a pen

12  register or a trap and trace device.--

13         (2)  Upon the request of the applicant specified in s.

14  934.32(1), a provider of a wire or electronic communication

15  service, landlord, custodian, or other person shall install a

16  trap and trace device forthwith on the appropriate line and

17  shall furnish such investigative or law enforcement officer or

18  other applicant all additional information, facilities, and

19  technical assistance, including installation and operation of

20  the device unobtrusively and with a minimum of interference

21  with the services that the person so ordered by the court

22  accords the party with respect to whom the installation and

23  use is to take place if such installation and assistance is

24  directed by a court order as provided in s. 934.33(2)(b).

25  Unless otherwise ordered by the court, the results of the trap

26  and trace device shall be furnished, pursuant to s.

27  934.33(2)(b) or s. 934.35, to an officer of the law

28  enforcement agency designated in the court order at reasonable

29  intervals during regular business hours for the duration of

30  the order.  The obligation of a provider of electronic

31  communication service under such an order or under such

                                  18

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                                  SB 1934
    10-1057-99




  1  emergency pen register or trap and trace device installation

  2  may include, but is not limited to, conducting an in-progress

  3  trace, or providing other assistance to support the

  4  investigation as may be specified in the order.

  5         Section 9.  Section 934.35, Florida Statutes, is

  6  created to read:

  7         934.35  Emergency pen register and trap and trace

  8  device installation.--

  9         (1)  Notwithstanding any other provision of this

10  chapter, any investigative or law enforcement officer

11  specially designated by the Governor, the Attorney General,

12  the statewide prosecutor, or a state attorney acting pursuant

13  to this chapter, who reasonably determines that:

14         (a)  An emergency exists which involves immediate

15  danger of death or serious physical injury to any person;

16  involves conspiratorial activities characteristic of organized

17  crime; or involves the danger of escape of a prisoner which

18  requires the installation and use of a pen register or a trap

19  and trace device before an order authorizing such installation

20  and use can, with due diligence, be obtained, and

21         (b)  There are grounds upon which an order could be

22  entered under this chapter to authorize such interception,

23

24  may have installed and use a pen register or trap and trace

25  device if, within 48 hours after the installation has occurred

26  or begins to occur, an order approving the installation or use

27  is issued in accordance with s. 934.33.

28         (2)  In the absence of an authorizing order, such use

29  shall immediately terminate when the information sought is

30  obtained, when the application for the order is denied, or

31

                                  19

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                                  SB 1934
    10-1057-99




  1  when 48 hours have lapsed since the installation of the pen

  2  register or trap and trace device, whichever is earlier.

  3         (3)  The knowing installation or use by any

  4  investigative or law enforcement officer of a pen register or

  5  trap and trace device pursuant to subsection (1) without

  6  application for the authorizing order within 48 hours after

  7  the installation constitutes a violation of s. 934.31(3).

  8         (4)  A provider of wire or electronic service,

  9  landlord, custodian, or other person who furnished facilities

10  or technical assistance pursuant to this section shall be

11  reasonably compensated for reasonable expenses incurred in

12  providing such facilities and assistance.

13         Section 10.  This act shall take effect October 1,

14  1999.

15

16            *****************************************

17                          SENATE SUMMARY

18    Revises numerous provisions relating to security of
      communications, generally to conform to federal law on
19    that subject. Provides additional duties of persons to
      furnish assistance to officers in intercepting
20    communications and provides additional defenses against
      civil or criminal liability. Prescribes duties of
21    providers of electronic communications or remote
      computing services. Provides additional grounds for
22    issuance of a court order and provides for emergency
      interception under specified conditions.
23

24

25

26

27

28

29

30

31

                                  20