House Bill hb1439
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Florida House of Representatives - 2002 HB 1439
By Representative Gelber
1 A bill to be entitled
2 An act relating to the interception of
3 communications; amending s. 934.02, F.S.;
4 revising definitions; including wire
5 communications within the meaning of an
6 electronic communications system; redefining
7 the terms "pen register" and "trap and trace
8 device"; defining the terms "foreign
9 intelligence information," "protected
10 computer," and "computer trespasser"; amending
11 s. 934.03, F.S.; authorizing the interception
12 of certain wire or electronic communications of
13 a computer trespasser; amending s. 934.07,
14 F.S.; authorizing the Department of Law
15 Enforcement to intercept wire, oral, or
16 electronic communications for purposes of
17 investigating certain additional offenses
18 concerning terrorism and the attempted or
19 threatened use of a destructive device or
20 weapon of mass destruction; requiring a law
21 enforcement agency to notify the Department of
22 Law Enforcement if an intercepted communication
23 provides evidence of certain acts of terrorism;
24 amending s. 934.09, F.S.; providing for the
25 interception of communications upon certain
26 findings of activities that threaten the
27 security of the nation or state; specifying
28 circumstances under which the court may
29 authorize the interception of communications
30 outside the court's jurisdiction; amending s.
31 934.08, F.S.; authorizing the disclosure of the
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1 contents of an intercepted communication to
2 certain state and federal officials; amending
3 s. 934.22, F.S.; prohibiting a provider of
4 electronic communication service or a provider
5 of remote computing service from disclosing the
6 contents of communications or information
7 pertaining to a subscriber or customer;
8 specifying certain exceptions; amending s.
9 934.23, F.S.; providing for disclosure of
10 information pertaining to a subscriber or
11 customer under specified circumstances and
12 pursuant to a warrant; amending s. 934.27,
13 F.S.; providing that a request of an
14 investigative or law enforcement officer to
15 preserve records is a defense with respect to a
16 civil or criminal action concerning unlawful
17 access to communications; amending s. 934.31,
18 F.S.; prohibiting the recording of the contents
19 of communications by the use of a pen register
20 or trap and trace device; amending s. 934.33,
21 F.S.; requiring that a certification of an
22 order for a pen register or a trap and trace
23 device be provided to any person or entity not
24 specifically named in the order; requiring that
25 the order include information concerning
26 location of the device and geographic limits of
27 the order; requiring an investigative or law
28 enforcement agency to maintain a record of the
29 use of a pen register or trap and trace device
30 installed pursuant to an ex parte order;
31 requiring that the record be provided to the
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1 court; amending s. 934.34, F.S.; providing for
2 a trap and trace device to be installed on
3 other facilities; providing an effective date.
4
5 Be It Enacted by the Legislature of the State of Florida:
6
7 Section 1. Subsections (1), (8), (14), (20), and (21)
8 of section 934.02, Florida Statutes, are amended, and
9 subsections (24), (25), and (26) are added to said section, to
10 read:
11 934.02 Definitions.--As used in this chapter:
12 (1) "Wire communication" means any aural transfer made
13 in whole or in part through the use of facilities for the
14 transmission of communications by the aid of wire, cable, or
15 other like connection between the point of origin and the
16 point of reception including the use of such connection in a
17 switching station furnished or operated by any person engaged
18 in providing or operating such facilities for the transmission
19 of intrastate, interstate, or foreign communications or
20 communications affecting intrastate, interstate, or foreign
21 commerce. Such term includes any electronic storage of such
22 communication.
23 (8) "Judge of competent jurisdiction" means justice of
24 the Supreme Court, judge of a district court of appeal,
25 circuit judge, or judge of any court of record having felony
26 jurisdiction of the State of Florida, irrespective of the
27 geographic location or jurisdiction where the judge presides.
28 (14) "Electronic communications system" means any
29 wire, radio, electromagnetic, photooptical, or photoelectronic
30 facilities for the transmission of wire or electronic
31 communications, and any computer facilities or related
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1 electronic equipment for the electronic storage of such
2 communications.
3 (20) "Pen register" means a device or process that
4 which records or decodes dialing, routing, addressing, or
5 signaling information transmitted by an instrument or facility
6 from which a wire or electronic communication is transmitted,
7 but such information does not include the contents of any
8 communication. The electronic or other impulses which identify
9 the numbers dialed or otherwise transmitted on the telephone
10 line to which such device is attached, but such term does not
11 include any device or process used by a provider or customer
12 of a wire or electronic communication service for billing or
13 recording as an incident to billing or, for communication
14 services provided by such provider, and does not include or
15 any device or process used by a provider or customer of a wire
16 communication service for cost accounting or other like
17 purposes in the ordinary course of its business.
18 (21) "Trap and trace device" means a device or process
19 that which captures the incoming electronic or other impulses
20 that which identify the originating number or other dialing,
21 routing, addressing, or signaling information reasonably
22 likely to identify the source of a wire or electronic
23 communication, but such information does not include the
24 contents of any communication of an instrument or a device
25 from which a wire or electronic communication was transmitted.
26 (24) "Foreign intelligence information" means
27 information, whether or not concerning a United States person,
28 as that term is defined in 50 U.S.C. s. 1801, which relates
29 to:
30
31
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1 (a) The ability of the United States to protect
2 against actual or potential attack or other grave hostile acts
3 of a foreign power or an agent of a foreign power;
4 (b) Sabotage or international terrorism by a foreign
5 power or an agent of a foreign power;
6 (c) Clandestine intelligence activities by an
7 intelligence service, a network of a foreign power, or an
8 agent of a foreign power; or
9 (d) With respect to a foreign power or foreign
10 territory, the national defense or security of the United
11 States or the conduct of the foreign affairs of the United
12 States.
13 (25) "Protected computer" means:
14 (a) A computer for the exclusive use of a financial
15 institution or governmental entity;
16 (b) A computer that is not for the exclusive use of a
17 financial institution or governmental entity, but that is used
18 by or for a financial institution or governmental entity and
19 with respect to which unlawful conduct can affect the use by
20 or for the financial institution or governmental entity; or
21 (c) A computer that is used in interstate or foreign
22 commerce or communication, including a computer located
23 outside the United States.
24 (26) "Computer trespasser" means a person who accesses
25 a protected computer without authorization and thus does not
26 have a reasonable expectation of privacy with respect to any
27 communication transmitted to, through, or from the protected
28 computer. The term does not include a person known by the
29 owner or operator of the protected computer to have an
30 existing contractual relationship with the owner or operator
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1 of the protected computer for access to all or part of the
2 protected computer.
3 Section 2. Paragraph (j) is added to subsection (2) of
4 section 934.03, Florida Statutes, to read:
5 934.03 Interception and disclosure of wire, oral, or
6 electronic communications prohibited.--
7 (2)
8 (j) It is not unlawful under ss. 934.03-934.09 for a
9 person acting under color of law to intercept the wire or
10 electronic communications of a computer trespasser which are
11 transmitted to, through, or from a protected computer if:
12 1. The owner or operator of the protected computer
13 authorizes the interception of the communications of the
14 computer trespasser;
15 2. The person acting under color of law is lawfully
16 engaged in an investigation;
17 3. The person acting under color of law has reasonable
18 grounds to believe that the contents of the communications of
19 the computer trespasser will be relevant to the investigation;
20 and
21 4. The interception does not acquire communications
22 other than those transmitted to, through, or from the computer
23 trespasser.
24 Section 3. Section 934.07, Florida Statutes, as
25 amended by section 1 of chapter 2001-359, Laws of Florida, is
26 amended to read:
27 934.07 Authorization for interception of wire, oral,
28 or electronic communications.--
29 (1) The Governor, the Attorney General, the statewide
30 prosecutor, or any state attorney may authorize an application
31 to a judge of competent jurisdiction for, and such judge may
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1 grant in conformity with ss. 934.03-934.09 an order
2 authorizing or approving the interception of, wire, oral, or
3 electronic communications by:
4 (a) The Department of Law Enforcement or any law
5 enforcement agency as defined in s. 934.02 having
6 responsibility for the investigation of the offense as to
7 which the application is made when such interception may
8 provide or has provided evidence of the commission of the
9 offense of murder, kidnapping, aircraft piracy, arson,
10 gambling, robbery, burglary, theft, dealing in stolen
11 property, criminal usury, bribery, or extortion; any felony
12 violation of ss. 790.161-790.166, inclusive; any violation of
13 chapter 893; any violation of the provisions of the Florida
14 Anti-Fencing Act; any violation of chapter 895; any violation
15 of chapter 896; any violation of chapter 815; any violation of
16 chapter 847; any violation of s. 827.071; any violation of s.
17 944.40; or any conspiracy or solicitation to commit any
18 violation of the laws of this state relating to the crimes
19 specifically enumerated in this paragraph.
20 (b) The Department of Law Enforcement, together with
21 other assisting personnel as authorized and requested by the
22 department under s. 934.09(5), for the investigation of the
23 offense as to which the application is made when such
24 interception may provide or has provided evidence of the
25 commission of any offense that may be an act of terrorism or
26 in furtherance of an act of terrorism or evidence of any
27 conspiracy or solicitation to commit any such violation.
28 (2)(a) If, during the course of an interception of
29 communications by a law enforcement agency as authorized under
30 paragraph (1)(a), the law enforcement agency finds that the
31 intercepted communications may provide or have provided
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1 evidence of the commission of any offense that may be an act
2 of terrorism or in furtherance of an act of terrorism, or
3 evidence of any conspiracy or solicitation to commit any such
4 violation, the law enforcement agency shall promptly notify
5 the Department of Law Enforcement and apprise the department
6 of the contents of the intercepted communications. The agency
7 notifying the department may continue its previously
8 authorized interception with appropriate minimization, as
9 applicable, and may otherwise assist the department as
10 provided in this section.
11 (b) Upon its receipt of information of the contents of
12 an intercepted communications from a law enforcement agency,
13 the Department of Law Enforcement shall promptly review the
14 information to determine whether the information relates to an
15 actual or anticipated act of terrorism as defined in this
16 section. If, after reviewing the contents of the intercepted
17 communications, there is probable cause that the contents of
18 the intercepted communications meet the criteria of paragraph
19 (1)(b), the Department of Law Enforcement may make application
20 for the interception of wire, oral, or electronic
21 communications consistent with subsection (1)(b). The
22 department may make an independent new application for
23 interception based on the contents of the intercepted
24 communications. Alternatively, the department may request the
25 law enforcement agency that provided the information to join
26 with the department in seeking an amendment of the original
27 interception order, or may seek additional authority to
28 continue intercepting communications under the direction of
29 the department. In carrying out its duties under this section,
30 the department may use the provisions for an emergency
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1 interception provided in s. 934.09(7) if applicable under
2 statutory criteria.
3 (3)(2) As used in this section, the term "terrorism"
4 means an activity that:
5 (a)1. Involves a violent act or an act dangerous to
6 human life which is a violation of the criminal laws of this
7 state or of the United States; or
8 2. Involves a violation of s. 815.06; and
9 (b) Is intended to:
10 1. Intimidate, injure, or coerce a civilian
11 population;
12 2. Influence the policy of a government by
13 intimidation or coercion; or
14 3. Affect the conduct of government through
15 destruction of property, assassination, murder, kidnapping, or
16 aircraft piracy.
17 Section 4. Subsection (7) and paragraph (b) of
18 subsection (11) of section 934.09, Florida Statutes, as
19 amended by section 2 of chapter 2001-359, Laws of Florida, are
20 amended to read:
21 934.09 Procedure for interception of wire, oral, or
22 electronic communications.--
23 (7) Notwithstanding any other provision of this
24 chapter, any investigative or law enforcement officer
25 specially designated by the Governor, the Attorney General,
26 the statewide prosecutor, or a state attorney acting under
27 this chapter, who reasonably determines that:
28 (a) An emergency exists that:
29 1. Involves immediate danger of death or serious
30 physical injury to any person, or the danger of escape of a
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1 prisoner, or conspiratorial activities threatening the
2 security interest of the nation or state; and
3 2. Requires that a wire, oral, or electronic
4 communication be intercepted before an order authorizing such
5 interception can, with due diligence, be obtained; and
6 (b) There are grounds upon which an order could be
7 entered under this chapter to authorize such interception
8
9 may intercept such wire, oral, or electronic communication if
10 an application for an order approving the interception is made
11 in accordance with this section within 48 hours after the
12 interception has occurred or begins to occur. In the absence
13 of an order, such interception shall immediately terminate
14 when the communication sought is obtained or when the
15 application for the order is denied, whichever is earlier. If
16 such application for approval is denied, or in any other case
17 in which the interception is terminated without an order
18 having been issued, the contents of any wire, oral, or
19 electronic communication intercepted shall be treated as
20 having been obtained in violation of s. 934.03(4), and an
21 inventory shall be served as provided for in paragraph (8)(e)
22 on the person named in the application.
23 (11) The requirements of subparagraph (1)(b)2. and
24 paragraph (3)(d) relating to the specification of the
25 facilities from which, or the place where, the communication
26 is to be intercepted do not apply if:
27 (b) In the case of an application with respect to a
28 wire or electronic communication:
29 1. The application is by an agent or officer of a law
30 enforcement agency and is approved by the Governor, the
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1 Attorney General, the statewide prosecutor, or a state
2 attorney.
3 2. The application identifies the person believed to
4 be committing the offense and whose communications are to be
5 intercepted and the applicant makes a showing that there is
6 probable cause to believe that the person's actions could have
7 the effect of thwarting interception from a specified facility
8 or that the person whose communications are to be intercepted
9 has removed, or is likely to remove, himself or herself to
10 another judicial circuit within the state.
11 3. The judge finds that such showing has been
12 adequately made.
13 4. The order authorizing or approving the interception
14 is limited to interception only for such time as it is
15 reasonable to presume that the person identified in the
16 application is or was reasonably proximate to the instrument
17 through which such communication will be or was transmitted.
18
19 Consistent with this paragraph, a judge of competent
20 jurisdiction and limited to investigations of acts of
21 terrorism, as that term is defined in s. 934.07, the court may
22 authorize continued interception within this state, whether
23 the interception is both within or and outside the court's its
24 jurisdiction, if the application for the interception makes a
25 showing that some activity or conspiracy believed to be
26 related to, or in furtherance of, the criminal predicate for
27 the requested interception has occurred or will likely occur,
28 in whole or in part, within the jurisdiction of the court
29 where the order is being sought original interception occurred
30 within its jurisdiction.
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1 Section 5. Effective July 1, 2004, paragraph (b) of
2 subsection (11) of section 934.09, Florida Statutes, as
3 amended by this act and by section 3 of chapter 2001-359, Laws
4 of Florida, is amended to read:
5 934.09 Procedure for interception of wire, oral, or
6 electronic communications.--
7 (11) The requirements of subparagraph (1)(b)2. and
8 paragraph (3)(d) relating to the specification of the
9 facilities from which, or the place where, the communication
10 is to be intercepted do not apply if:
11 (b) In the case of an application with respect to a
12 wire or electronic communication:
13 1. The application is by an agent or officer of a law
14 enforcement agency and is approved by the Governor, the
15 Attorney General, the statewide prosecutor, or a state
16 attorney.
17 2. The application identifies the person believed to
18 be committing the offense and whose communications are to be
19 intercepted and the applicant makes a showing that there is
20 probable cause to believe that the person's actions could have
21 the effect of thwarting interception from a specified facility
22 or that the person whose communications are to be intercepted
23 has removed, or is likely to remove, himself or herself to
24 another judicial circuit within the state.
25 3. The judge finds that such showing has been
26 adequately made.
27 4. The order authorizing or approving the interception
28 is limited to interception only for such time as it is
29 reasonable to presume that the person identified in the
30 application is or was reasonably proximate to the instrument
31 through which such communication will be or was transmitted.
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1
2 Consistent with this paragraph, a judge of competent
3 jurisdiction may authorize interception within this state,
4 whether the interception is within or outside the court's
5 jurisdiction, if the application for the interception makes a
6 showing that some activity or conspiracy believed to be
7 related to, or in furtherance of, the criminal predicate for
8 the requested interception has occurred or will likely occur,
9 in whole or in part, within the jurisdiction of the court
10 where the order is being sought.
11 Section 6. Subsection (1) of section 934.08, Florida
12 Statutes, is amended to read:
13 934.08 Authorization for disclosure and use of
14 intercepted wire, oral, or electronic communications.--
15 (1) Any investigative or law enforcement officer who,
16 by any means authorized by this chapter, has obtained
17 knowledge of the contents of any wire, oral, or electronic
18 communication or evidence derived therefrom may disclose such
19 contents to:
20 (a) The Department of Legal Affairs for use in
21 investigations or proceedings pursuant to s. 812.035, part II
22 of chapter 501, chapter 542, or chapter 895, to any attorney
23 authorized by law to investigate and institute any action on
24 behalf of the State of Florida or political subdivision
25 thereof, or to another investigative or law enforcement
26 officer to the extent that such disclosure is appropriate to
27 the proper performance of the official duties of the officer
28 or person making or receiving the disclosure.
29 (b) Any state or federal law enforcement official,
30 state or federal intelligence official, state or federal
31 protective services official, federal immigration official,
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1 state or federal defense official, or state or federal
2 security official to the extent that the contents or evidence
3 includes foreign intelligence or counterintelligence, as
4 defined in 50 U.S.C. s. 401a, or foreign intelligence
5 information, as defined in this chapter, in order to assist
6 the official who receives that information in performing his
7 or her official duties. Any state or federal official who
8 receives information under this subsection may use that
9 information only as necessary in conducting official duties
10 and is subject to any limitations on the unauthorized
11 disclosure of such information.
12 Section 7. Section 934.22, Florida Statutes, is
13 amended to read:
14 934.22 Voluntary disclosure of customer communications
15 or records contents.--
16 (1) Except as provided in subsection (2) or subsection
17 (3):
18 (a) A provider of person or entity who provides an
19 electronic communication service to the public may not
20 knowingly divulge to:
21 1. Any person or entity the contents of a
22 communication while in electronic storage by that service; or.
23 2. Any governmental entity a record or other
24 information pertaining to a subscriber to or customer of such
25 service.
26 (b) A provider of person or entity who provides remote
27 computing service to the public may not knowingly divulge to:
28 1. Any person or entity the contents of any
29 communication that which is carried or maintained on that
30 service:
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1 a.1. On behalf of a subscriber or customer of such
2 service and received by means of electronic transmission from,
3 or created by means of computer processing of communications
4 received by means of electronic transmission from, a
5 subscriber or customer of such remote computing service; and
6 or
7 b.2. Solely for the purpose of providing storage or
8 computer processing services to its subscriber or customer, if
9 the provider is not authorized to access the contents of any
10 such communication for purposes of providing any service other
11 than storage or computer processing; or.
12 2. Any governmental entity a record or other
13 information pertaining to a subscriber to or customer of such
14 service.
15 (2) A provider described in subsection (1) person or
16 entity may divulge the contents of a communication:
17 (a) To an addressee or intended recipient of such
18 communication or an agent of such addressee or intended
19 recipient.
20 (b) As otherwise authorized in s. 934.03(2)(a), s.
21 934.07, or s. 934.23.
22 (c) With the lawful consent of the originator or an
23 addressee or intended recipient of such communication, or the
24 subscriber in the case of a remote computing service.
25 (d) To a person employed or authorized, or whose
26 facilities are used, to forward such communication to its
27 destination.
28 (e) As may be necessarily incident to the rendition of
29 the service or to the protection of the rights or property of
30 the provider of that service.
31 (f) To a law enforcement agency, if such contents:
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1 1. The contents were inadvertently obtained by the
2 service provider;, and
3 2. The contents appear to pertain to the commission of
4 a crime; or.
5 3. The provider reasonably believes an emergency
6 involving immediate danger of death or serious physical injury
7 to another person requires disclosure of the contents without
8 delay.
9 (3)(a) A provider described in subsection (1) may
10 disclose a record or other information pertaining to a
11 subscriber to or customer of such service:
12 1. As is otherwise authorized in s. 934.23.
13 2. With the lawful consent of the customer or
14 subscriber.
15 3. As is necessary incident to rendering service or
16 protecting the rights or property of the provider of that
17 service.
18 4. To a governmental entity if the provider reasonably
19 believes that an emergency involving immediate danger of death
20 or serious physical injury to any person justifies disclosure
21 of the information.
22 5. To any person other than a governmental entity.
23 (b) Notwithstanding paragraph (a), a provider may not
24 disclose the contents of communications specified in paragraph
25 (1)(a) or paragraph (1)(b).
26 Section 8. Section 934.23, Florida Statutes, is
27 amended to read:
28 934.23 Required disclosure of customer communications
29 or records Requirements for governmental access.--
30 (1) An investigative or law enforcement officer may
31 require the disclosure by a provider of electronic
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1 communication service of the contents of a wire or an
2 electronic communication that has been in electronic storage
3 in an electronic communications system for 180 days or less
4 only pursuant to a warrant issued by the judge of a court of
5 competent jurisdiction. An investigative or law enforcement
6 officer may require the disclosure by a provider of electronic
7 communication services of the contents of a wire or an
8 electronic communication that has been in electronic storage
9 in an electronic communications system for more than 180 days
10 by the means available under subsection (2).
11 (2) An investigative or law enforcement officer may
12 require a provider of remote computing service to disclose the
13 contents of any wire or electronic communication to which this
14 subsection is made applicable by subsection (3):
15 (a) Without required notice to the subscriber or
16 customer if the investigative or law enforcement officer
17 obtains a warrant issued by the judge of a court of competent
18 jurisdiction; or
19 (b) With prior notice, or with delayed notice pursuant
20 to s. 934.25, from the investigative or law enforcement
21 officer to the subscriber or customer if the investigative or
22 law enforcement officer:
23 1. Uses a subpoena; or
24 2. Obtains a court order for such disclosure under
25 subsection (5).
26 (3) Subsection (2) is applicable with respect to any
27 electronic communication that is held or maintained on a
28 remote computing service:
29 (a) On behalf of a subscriber or customer of such
30 service and received by means of electronic transmission from,
31 or created by means of computer processing of communications
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1 received by means of electronic transmission from, a
2 subscriber or customer of such service.
3 (b) Solely for the purposes of providing storage or
4 computer processing services to a subscriber or customer, if
5 the provider is not authorized to access the contents of any
6 such communication for purposes of providing any service other
7 than storage or computer processing.
8 (4)(a) An investigative or law enforcement officer may
9 require Except as provided in paragraph (b), a provider of
10 electronic communication service or remote computing service
11 to may disclose a record or other information pertaining to a
12 subscriber or customer of such service, not including the
13 contents of a communication, covered by subsection (1) or
14 subsection (2), to any person other than an investigative or
15 law enforcement officer.
16 (b) A provider of electronic communication service or
17 remote computing service shall disclose a record or other
18 information pertaining to a subscriber to or customer of such
19 service, not including the contents of communications covered
20 by subsection (1) or subsection (2), to an investigative or
21 law enforcement officer only when the investigative or law
22 enforcement officer:
23 1. Obtains a warrant issued by the judge of a court of
24 competent jurisdiction;
25 2. Obtains a court order for such disclosure under
26 subsection (5); or
27 3. Has the consent of the subscriber or customer to
28 such disclosure; or.
29 4. Seeks information under paragraph (b).
30 (b)(c) A provider of electronic communication service
31 or remote computing service shall disclose to an investigative
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1 or law enforcement officer the name;, address; local and long
2 distance telephone connection records, or records of session
3 times or durations; length of service, including the starting
4 date of service; types of services used; telephone or
5 instrument number or other subscriber number or identity,
6 including any temporarily assigned network address; and means
7 and source of payment, including any credit card or bank
8 account number of, telephone toll billing records, telephone
9 number or other subscriber number or identity, and length of
10 service as a subscriber to or customer of such service and the
11 types of services the subscriber or customer used when the
12 governmental entity uses a subpoena or obtains such
13 information in the manner specified in paragraph (a) for
14 obtaining information under that paragraph.
15 (c)(d) An investigative or law enforcement officer who
16 receives records or information under this subsection is not
17 required to provide notice to a subscriber or customer.
18 (5) A court order for disclosure under subsection (2),
19 subsection (3), or subsection (4) shall issue only if the
20 investigative or law enforcement officer offers specific and
21 articulable facts showing that there are reasonable grounds to
22 believe the contents of a wire or electronic communication or
23 the records of other information sought are relevant and
24 material to an ongoing criminal investigation. A court
25 issuing an order pursuant to this section, on a motion made
26 promptly by the service provider, may quash or modify such
27 order if the information or records requested are unusually
28 voluminous in nature or compliance with such order otherwise
29 would cause an undue burden on such provider.
30 (6) No cause of action shall lie in any court against
31 any provider of wire or electronic communication service, its
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1 officers, employees, agents, or other specified persons for
2 providing information, facilities, or assistance in accordance
3 with the terms of a court order, warrant, subpoena, or
4 certification under ss. 934.21-934.28.
5 (7)(a) A provider of wire or electronic communication
6 services or a remote computing service, upon the request of an
7 investigative or law enforcement officer, shall take all
8 necessary steps to preserve records and other evidence in its
9 possession pending the issuance of a court order or other
10 process.
11 (b) Records referred to in paragraph (a) shall be
12 retained for a period of 90 days, which shall be extended for
13 an additional 90 days upon a renewed request by an
14 investigative or law enforcement officer.
15 (8) A provider of electronic communication service, a
16 remote computing service, or any other person who furnished
17 assistance pursuant to this section shall be held harmless
18 from any claim and civil liability resulting from the
19 disclosure of information pursuant to this section and shall
20 be reasonably compensated for reasonable expenses incurred in
21 providing such assistance.
22 Section 9. Subsection (4) of section 934.27, Florida
23 Statutes, is amended to read:
24 934.27 Civil action: relief; damages; defenses.--
25 (4) A good faith reliance on any of the following is a
26 complete defense to any civil or criminal action brought under
27 ss. 934.21-934.28:
28 (a) A court warrant or order, a subpoena, or a
29 statutory authorization, including, but not limited to, a
30 request of an investigative or law enforcement officer to
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1 preserve records or other evidence, as provided in s.
2 934.23(7).
3 (b) A request of an investigative or law enforcement
4 officer under s. 934.09(7).
5 (c) A good faith determination that s. 934.03(3)
6 permitted the conduct complained of.
7 Section 10. Subsections (3) and (4) of section 934.31,
8 Florida Statutes, are amended to read:
9 934.31 General prohibition on pen register and trap
10 and trace device use; exception.--
11 (3) An investigative or law enforcement officer
12 authorized to install and use a pen register or trap and trace
13 device under ss. 934.31-934.34 shall use technology reasonably
14 available to him or her which restricts the recording or
15 decoding of electronic or other impulses to the dialing,
16 routing, addressing, and signaling information used in
17 processing and transmitting wire or electronic communications
18 so that the contents of any wire or electronic communications
19 are not recorded or decoded call processing.
20 (4)(a) Notwithstanding any other provision of this
21 chapter, any investigative or law enforcement officer
22 specially designated by the Governor, the Attorney General,
23 the statewide prosecutor, or a state attorney acting pursuant
24 to this chapter, who reasonably determines that:
25 1. An emergency exists which:
26 a. Involves immediate danger of death or serious
27 physical injury to any person or the danger of escape of a
28 prisoner, or involves conspiratorial activities threatening
29 the security interest of the nation or state; and
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1 b. Requires the installation and use of a pen register
2 or a trap and trace device before an order authorizing such
3 installation and use can, with due diligence, be obtained; and
4 2. There are grounds upon which an order could be
5 entered under this chapter to authorize such installation and
6 use,
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8 may have installed and use a pen register or trap and trace
9 device if, within 48 hours after the installation has occurred
10 or begins to occur, an order approving the installation or use
11 is issued in accordance with s. 934.33.
12 (b) In the absence of an authorizing order, such use
13 shall immediately terminate when the information sought is
14 obtained, when the application for the order is denied, or
15 when 48 hours have lapsed since the installation of the pen
16 register or trap and trace device, whichever is earlier.
17 (c) The knowing installation or use by any
18 investigative or law enforcement officer of a pen register or
19 trap and trace device pursuant to paragraph (a) without
20 application for the authorizing order within 48 hours after
21 the installation constitutes a violation of s. 934.31.
22 (d) A provider of wire or electronic service,
23 landlord, custodian, or other person who has furnished
24 facilities or technical assistance pursuant to this subsection
25 shall be held harmless from any claims and civil liability
26 resulting from the disclosure of information pursuant to this
27 subsection and shall be reasonably compensated for reasonable
28 expenses incurred in providing such facilities and assistance.
29 Section 11. Section 934.33, Florida Statutes, is
30 amended to read:
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1 934.33 Issuance of an order for a pen register or a
2 trap and trace device.--
3 (1) Upon application made under s. 934.32, the court
4 shall enter an ex parte order authorizing the installation and
5 use of a pen register or a trap and trace device within the
6 jurisdiction of the court if the court finds that the
7 applicant specified in s. 934.32(1) has certified to the court
8 that the information likely to be obtained by such
9 installation and use is relevant to an ongoing criminal
10 investigation. Whenever such order is served on any person or
11 entity not specifically named in the order, upon request of
12 such person or entity, the person specified in s. 934.32 who
13 has requested and is serving such order shall provide written
14 or electronic certification that such order applies to the
15 person or entity being served.
16 (2) An order issued under this section:
17 (a) Must specify the following:
18 1. The identity, if known, of the person to whom is
19 leased or in whose name is listed the telephone line or other
20 facility to which the pen register or trap and trace device is
21 to be attached or applied.
22 2. The identity, if known, of the person who is the
23 subject of the criminal investigation.
24 3. The attributes of the communications to which the
25 order applies, including the number or other identifier and,
26 if known, the physical location of the telephone line or other
27 facility to which the pen register or trap and trace device is
28 to be attached or applied and, in the case of an order
29 authorizing installation and use of a trap and trace device,
30 the geographic limits of the trap and trace order.
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1 4. A statement of the offense to which the information
2 likely to be obtained by the pen register or trap and trace
3 device relates.
4 (b) Must direct, upon the request of the applicant,
5 the furnishing of information, facilities, and technical
6 assistance necessary to accomplish the installation of the pen
7 register or trap and trace device under s. 934.34.
8 (3)(a) An order issued under this section may not
9 authorize the installation and use of a pen register or a trap
10 and trace device for more than 60 days.
11 (b) Extensions of such an order may be granted but
12 only upon an application for an order under s. 934.32 and upon
13 the judicial finding required by subsection (1). The period
14 of extension may not exceed 60 days.
15 (4) An order authorizing or approving the installation
16 and use of a pen register or a trap and trace device must
17 direct that:
18 (a) The order be sealed until otherwise ordered by the
19 court, and
20 (b) The person owning or leasing the line or other
21 facility to which the pen register or a trap and trace device
22 is attached or applied, or who is obligated by the order has
23 been ordered by the court to provide assistance to the
24 applicant, not disclose the existence of the pen register or
25 trap and trace device or the existence of the investigation to
26 the listed subscriber or to any other person except as
27 otherwise ordered by the court.
28 (5) A court may not require greater specificity or
29 additional information beyond that which is required under s.
30 934.32 and this section as a requisite for issuing an order as
31 provided in this section.
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1 (6)(a) If an investigative or law enforcement agency
2 implementing an ex parte order under this section seeks to do
3 so by installing and using its own pen register or trap and
4 trace device on a packet-switched data network of a provider
5 of electronic communication service to the public, the agency
6 must ensure that a record is maintained which identifies:
7 1. Each officer who installed the device and each
8 officer who accessed the device to obtain information from the
9 network;
10 2. The date and time the device was installed; the
11 date and time the device was uninstalled; and the date, time,
12 and duration of each occasion the device was accessed to
13 obtain information;
14 3. The configuration of the device at the time of its
15 installation and any subsequent modification of that
16 configuration; and
17 4. Any information that was collected by the device.
18 (b) To the extent that the pen register or trap and
19 trace device can be set automatically to record electronically
20 the information required in paragraph (a), the record shall be
21 maintained electronically throughout the installation and use
22 of the device.
23 (7) The record maintained under subsection (6) shall
24 be provided ex parte and under seal to the court that entered
25 the ex parte order authorizing the installation and use of the
26 device within 30 days after termination of the order,
27 including any extension of the order.
28 Section 12. Subsection (2) of section 934.34, Florida
29 Statutes, is amended to read:
30 934.34 Assistance in installation and use of a pen
31 register or a trap and trace device.--
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1 (2) Upon the request of the applicant specified in s.
2 934.32(1), a provider of a wire or electronic communication
3 service, landlord, custodian, or other person shall install a
4 trap and trace device forthwith on the appropriate line or
5 other facility and shall furnish such investigative or law
6 enforcement officer or other applicant all additional
7 information, facilities, and technical assistance, including
8 installation and operation of the device unobtrusively and
9 with a minimum of interference with the services that the
10 person so ordered by the court accords the party with respect
11 to whom the installation and use is to take place if such
12 installation and assistance is directed by a court order as
13 provided in s. 934.33(2)(b). Unless otherwise ordered by the
14 court, the results of the trap and trace device shall be
15 furnished, pursuant to s. 934.31(4) or s. 934.33(2)(b), to an
16 officer of the law enforcement agency designated in the court
17 order at reasonable intervals during regular business hours
18 for the duration of the order. The obligation of a provider of
19 electronic communication service under such an order or under
20 such emergency pen register or trap and trace device
21 installation may include, but is not limited to, conducting an
22 in-progress trace, or providing other assistance to support
23 the investigation as may be specified in the order.
24 Section 13. This act shall take effect upon becoming a
25 law.
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2 LEGISLATIVE SUMMARY
3 Revises various laws governing the interception of
communications by investigative or law enforcement
4 agencies. Defines the terms "foreign intelligence
information," "protected computer," and "computer
5 trespasser." Authorizes a law enforcement agency to
intercept wire or electronic communications of a computer
6 trespasser. Authorizes the Department of Law Enforcement
to intercept wire, oral, or electronic communications for
7 purposes of investigating acts of terrorism or the
attempted or threatened use of a destructive device or
8 weapon of mass destruction. Provides for a court to
authorize the interception of communications outside the
9 court's jurisdiction. Authorizes a law enforcement agency
to disclose the contents of an intercepted communication
10 to certain state and federal officials. Provides that the
request of a law enforcement officer to preserve records
11 is a defense against a civil or criminal action
concerning unlawful access to communications. Provides
12 certain limitations on the use of a pen register or trap
and trace device. Requires that a law enforcement agency
13 maintain a record of the use of a pen register or trap
and trace device installed pursuant to an ex parte order.
14 (See bill for details.)
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