Senate Bill sb1078c1

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    Florida Senate - 2003                           CS for SB 1078

    By the Committee on Criminal Justice; and Senator Atwater





    307-2420-03

  1                      A bill to be entitled

  2         An act relating to communications services;

  3         amending s. 812.15, F.S.; redefining the terms

  4         "cable operator" and "cable system"; defining

  5         the terms "communications device,"

  6         "communications service," "communications

  7         service provider," and "manufacture,

  8         development, or assembly of a communications

  9         device"; defining the term "multipurpose

10         device"; prohibiting certain interception,

11         reception, decryption, disruption,

12         transmission, retransmission, or acquisition of

13         access to described communications services and

14         prohibiting assisting others in these acts;

15         prohibiting the advertisement of communications

16         devices for certain unlawful purposes;

17         providing criminal and civil penalties;

18         providing for actual and statutory damages;

19         providing exceptions; providing an effective

20         date.

21  

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

23  

24         Section 1.  Section 812.15, Florida Statutes, is

25  amended to read:

26         812.15  Unauthorized reception of communications cable

27  television services; penalties.--

28         (1)  As used in this section, the term:

29         (a)  "Cable operator" means a communications service

30  provider who provides some or all of its communications

31  services pursuant to a "cable television franchise" issued by

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    Florida Senate - 2003                           CS for SB 1078
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 1  a "franchising authority," as those terms are defined in 47

 2  U.S.C. s. 522(9) and (10) (1992) "cable operator" as defined

 3  in 47 U.S.C. s. 522(4) (1988).

 4         (b)  "Cable system" means any communications service

 5  network, system, or facility owned or operated by a cable

 6  operator "cable system" as defined in 47 U.S.C. s. 522(6)

 7  (1988).

 8         (c)  "Communications device" means any type of

 9  electronic mechanism, transmission line or connections and

10  appurtenances thereto, instrument, device, machine, equipment,

11  or software that is capable of intercepting, transmitting,

12  acquiring, decrypting, or receiving any communications

13  service, or any part, accessory, or component thereof,

14  including any computer circuit, splitter, connector, switches,

15  transmission hardware, security module, smart card, software,

16  computer chip, electronic mechanism, or other component,

17  accessory, or part of any communications device which is

18  capable of facilitating the interception, transmission,

19  retransmission, acquisition, decryption, or reception of any

20  communications service.

21         (d)  "Communications service" means any service

22  lawfully provided for a charge or compensation by any cable

23  system or by any radio, fiber optic, photooptical,

24  electromagnetic, photoelectronic, satellite, microwave, data

25  transmission, Internet-based, or wireless distribution

26  network, system, or facility, including, but not limited to,

27  any electronic, data, video, audio, Internet access,

28  microwave, and radio communications, transmissions, signals,

29  and services, and any such communications, transmissions,

30  signals, and services lawfully provided for a charge or

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    Florida Senate - 2003                           CS for SB 1078
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 1  compensation, directly or indirectly by or through any of

 2  those networks, systems, or facilities.

 3         (e)  "Communications service provider" means:

 4         1.  Any person or entity owning or operating any cable

 5  system or any fiber optic, photooptical, electromagnetic,

 6  photoelectronic, satellite, wireless, microwave, radio, data

 7  transmission, or Internet-based distribution network, system,

 8  or facility.

 9         2.  Any person or entity providing any lawful

10  communications service, whether directly or indirectly, as a

11  reseller or licensee, by or through any such distribution

12  network, system, or facility.

13         (f)  "Manufacture, development, or assembly of a

14  communications device" means to make, produce, develop, or

15  assemble a communications device or any part, accessory, or

16  component thereof, or to modify, alter, program, or reprogram

17  any communications device so that it is capable of

18  facilitating the commission of a violation of this section.

19         (g)  "Multipurpose device" means any communications

20  device that is capable of more than one function and includes

21  any component thereof.

22         (2)(a)  A No person may not knowingly shall intercept,

23  or receive, decrypt, disrupt, transmit, retransmit, or acquire

24  access to or assist in intercepting or receiving any

25  communications service without the express authorization of

26  the offered over a cable system, unless specifically

27  authorized to do so by a cable operator or other

28  communications service provider, or as stated in a contract or

29  may otherwise, with the intent to defraud the cable operator

30  or communications service provider, or to knowingly assist

31  others in doing those acts with the intent to defraud the

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    Florida Senate - 2003                           CS for SB 1078
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 1  cable operator or other communications provider be

 2  specifically authorized by law. For the purpose of this

 3  section, the term "assist others" includes:

 4         1.  The sale, transfer, license, distribution,

 5  deployment, lease, manufacture, development, or assembly of a

 6  communications device for the purpose of facilitating the

 7  unauthorized receipt, acquisition, interception, disruption,

 8  decryption, transmission, retransmission, or access to any

 9  communications service offered by a cable operator or any

10  other communications service provider; or

11         2.  The sale, transfer, license, distribution,

12  deployment, lease, manufacture, development, or assembly of a

13  communications device for the purpose of defeating or

14  circumventing any effective technology, device, or software,

15  or any component or part thereof, used by a cable operator or

16  other communications service provider to protect any

17  communications service from unauthorized receipt, acquisition,

18  interception, disruption, access, decryption, transmission, or

19  retransmission. in intercepting or receiving" shall include

20  the manufacture of or distribution of equipment intended by

21  the manufacturer or distributor, as the case may be, for

22  unauthorized reception of any communications service offered

23  over a cable system in violation of this section.

24         (b)  Any person who willfully violates this subsection

25  commits shall be guilty of a misdemeanor of the first degree,

26  punishable as provided in s. 775.082 or s. 775.083.

27         (3)(a)  Any person who willfully violates paragraph

28  (2)(a), paragraph (4)(a), or subsection (5) and who has been

29  previously convicted of any such provision commits shall be

30  guilty of a felony of the third degree, punishable as provided

31  in s. 775.082, s. 775.083, or s. 775.084.

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    Florida Senate - 2003                           CS for SB 1078
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 1         (b)  Any person who willfully and for purposes of

 2  direct or indirect commercial advantage or private financial

 3  gain violates paragraph (2)(a), paragraph (4)(a), or

 4  subsection (5) commits shall be guilty of a felony of the

 5  third degree, punishable as provided in s. 775.082, s.

 6  775.083, or s. 775.084.

 7         (4)(a)  Any person who intentionally possesses a

 8  communications device equipment, knowing or having reason to

 9  know that the design of such device equipment renders it

10  primarily useful for the purpose of committing, or assisting

11  others in committing, a violation of paragraph (2)(a) commits

12  the unauthorized reception of any communications service

13  offered over a cable system, shall be guilty of a misdemeanor

14  of the first degree, punishable as provided in s. 775.082 or

15  s. 775.083.

16         (b)  Any person who intentionally possesses five or

17  more communications devices or pieces of equipment and knows

18  or has reason to know that the design of such devices or

19  pieces of equipment renders them primarily useful for

20  committing, or assisting others in committing, a violation of

21  paragraph (2)(a) commits the unauthorized reception of any

22  communications services offered over a cable system is guilty

23  of a felony of the third degree, punishable as provided in s.

24  775.082, s. 775.083, or s. 775.084.

25         (c)  Any person who intentionally possesses fifty or

26  more communications devices or pieces of equipment and knows

27  or has reason to know that the design of such devices or

28  equipment renders them primarily useful for committing, or

29  assisting others in committing, a violation of paragraph

30  (2)(a) commits the unauthorized reception of any

31  communications services offered over a cable system is guilty

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    Florida Senate - 2003                           CS for SB 1078
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 1  of a felony of in the second degree, punishable as provided in

 2  s. 775.082, s. 775.083, or s. 775.084.

 3         (5)  It is unlawful for any person to place in any

 4  newspaper, magazine, handbill, or other publication, including

 5  any electronic medium, any advertisement that, in whole or in

 6  part, promotes the sale of a communications device equipment,

 7  if the person placing the advertisement knows or has reason to

 8  know that the device equipment is designed to be primarily

 9  useful for committing, or assisting others in committing, a

10  violation of paragraph (2)(a) the unauthorized reception of

11  any communications service offered over a cable system. Any

12  person who violates this subsection shall be guilty of a

13  misdemeanor of the first degree, punishable as provided in s.

14  775.082 or s. 775.083.

15         (6)  All fines shall be imposed as provided in s.

16  775.083 for each communications device involved in the

17  prohibited activity or for each day a defendant is in

18  violation of this section.

19         (7)  The court shall, in addition to any other sentence

20  authorized by law, sentence a person convicted of violating

21  this section to make restitution as authorized by law.

22         (8)  Upon conviction of a defendant for violating this

23  section, the court may, in addition to any other sentence

24  authorized by law, direct that the defendant forfeit any

25  communications device in the defendant's possession or control

26  which was involved in the violation for which the defendant

27  was convicted.

28         (9)  A violation of paragraph (2)(a) may be deemed to

29  have been committed at any place where the defendant

30  manufactures, develops, or assembles any communications

31  devices involved in the violation, or assists others in these

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    Florida Senate - 2003                           CS for SB 1078
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 1  acts, or any place where the communications device is sold or

 2  delivered to a purchaser or recipient. It is not a defense to

 3  a violation of paragraph (2)(a) that some of the acts

 4  constituting the violation occurred outside the state.

 5         (10)(6)(a)  Any person aggrieved by any violation of

 6  this section may bring a civil action in a circuit court or in

 7  any other court of competent jurisdiction.

 8         (b)  The court may:

 9         1.  Grant temporary and final injunctions on such terms

10  as it finds may deem reasonable to prevent or restrain

11  violations of this section in conformity with the principles

12  that govern the granting of injunctive relief from threatened

13  loss or damage in other civil cases, except that a no showing

14  of special or irreparable damages to the person need not shall

15  have to be made.;

16         2.  At any time while the action is pending, order the

17  impounding, on reasonable terms, of any communications device

18  that is in the custody or control of the violator and that the

19  court has reasonable cause to believe was involved in the

20  alleged violation of this section and may grant other

21  equitable relief, including the imposition of a constructive

22  trust, as the court considers reasonable and necessary.

23         3.2.  Award damages pursuant to paragraphs (c), (d),

24  and (e).; and

25         4.3.  Direct the recovery of full costs, including

26  awarding reasonable attorney's fees, to an aggrieved party who

27  prevails.

28         5.  As part of a final judgment or decree finding a

29  violation of this section, order the remedial modification or

30  destruction of any communications device, or any other device

31  or equipment, involved in the violation which is in the

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    Florida Senate - 2003                           CS for SB 1078
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 1  custody or control of the violator or has been impounded under

 2  subparagraph 2.

 3         (c)  Damages awarded by any court under this section

 4  shall be computed in accordance with subparagraph 1. or

 5  subparagraph 2. either of the following:

 6         1.  The party aggrieved may recover the actual damages

 7  suffered by him or her as a result of the violation and any

 8  profits of the violator that are attributable to the violation

 9  which are not taken into account in computing the actual

10  damages.;

11         a.  Actual damages include the retail value of all

12  communications services to which the violator had unauthorized

13  access as a result of the violation and the retail value of

14  any communications service illegally available to each person

15  to whom the violator directly or indirectly provided or

16  distributed a communications device. In proving actual

17  damages, the party aggrieved must prove only that the violator

18  manufactured, distributed, or sold a communications device and

19  is not required to prove that any such device was actually

20  used in violation of this section.

21         b. In determining the violator's profits, the party

22  aggrieved must shall be required to prove only the violator's

23  gross revenue, and the violator must is required to prove his

24  or her deductible expenses and the elements of profit

25  attributable to factors other than the violation.; or

26         2.  Upon election of such damages at any time before

27  final judgment is entered, the party aggrieved may recover an

28  award of statutory damages for each communications device

29  violation involved in the action, in a sum of not less than

30  $250 or more than $10,000 for each such device, as the court

31  considers just.

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    Florida Senate - 2003                           CS for SB 1078
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 1         (d)  In any case in which the court finds that the

 2  violation was committed willfully and for purposes of

 3  commercial advantage or financial gain, the court in its

 4  discretion may increase the award of damages, whether actual

 5  or statutory under this section, by an amount of not more than

 6  $50,000 for each communications device involved in the action

 7  and for each day the defendant is in violation of this section

 8  violation.

 9         (e)  In any case in which the court finds that the

10  violator was not aware and had no reason to believe that his

11  or her acts constituted a violation of this section, the court

12  in its discretion may reduce the award of damages to a sum of

13  not less than $100.

14         (11)  This section shall not be construed to impose any

15  criminal or civil liability upon any state or local law

16  enforcement agency; any state or local government agency,

17  municipality, or authority; or any communications service

18  provider unless such entity is acting knowingly and with

19  intent to defraud a communications service provider as defined

20  in this section.

21         (12)  A person that manufactures, produces, assembles,

22  designs, sells, distributes, licenses, or develops a

23  multipurpose device shall not be in violation of this section

24  unless that person acts knowingly and with an intent to

25  defraud a communications services provider and the

26  multipurpose device:

27         (a)  Is manufactured, developed, assembled, produced,

28  designed, distributed, sold, or licensed for the primary

29  purpose of committing a violation of this section;

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 1         (b)  Has only a limited commercially significant

 2  purpose or use other than for the commission of any violation

 3  of this section; or

 4         (c)  Is marketed by that person or another acting in

 5  concert with that person with that person's knowledge for the

 6  purpose of committing any violation of this section.

 7         (13)  Nothing in this section shall require that the

 8  design of, or design and selection of parts, software code, or

 9  components for, a communications device provide for a response

10  to any particular technology, device, or software, or any

11  component or part thereof, used by the provider, owner, or

12  licensee of any communications service or of any data, audio

13  or video programs, or transmissions, to protect any such

14  communications, data, audio or video service, programs, or

15  transmissions from unauthorized receipt, acquisition,

16  interception, access, decryption, disclosure, communication,

17  transmission, or retransmission.

18         Section 2.  This act shall take effect October 1, 2003.

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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 1078

 3                                 

 4  -    Modifies the definition of "communication service" to
         indicate the definition includes communications,
 5       transmissions, signals, and services provided for a
         charge or compensation.
 6  
    -    Modifies the definition of "communications service
 7       provider" to indicate the definition applies to any
         lawful communications service, as specified.
 8  
    -    Defines the term "multipurpose device" and provides
 9       exceptions, as specified, in which manufacture,
         production, assembly, design, sale, distribution,
10       licensing, and development of a multipurpose device do
         not violate s. 812.15, F.S.
11  
    -    Broadens the offense of intercepting or receiving
12       communications services and modifies its elements so that
         it prohibits a person from knowingly intercepting,
13       receiving, decrypting, disrupting, transmitting,
         retransmitting, or acquiring access to any communications
14       service without the express authorization of the cable
         operator or other communications service provider as
15       stated in a contract or otherwise, with the intent to
         defraud either of them, or knowingly assist others in
16       doing those acts with the intent to defraud either of
         them.
17  
    -    Provides that unlawful assistance includes, in part, the
18       sale, transfer, license, distribution, deployment, lease,
         manufacture, development, or assembly of a communications
19       device for the purpose of defeating or circumventing any
         effective technology, device, or software, or any
20       component or part thereof, as specified.

21  -    Provides that all fines shall be imposed as provided in
         s. 775.083, F.S., for each communications device involved
22       in the prohibited activity or for each day a defendant is
         in violation of s. 812.15, F.S.
23  
    -    Provides that statutory damages may apply for each such
24       device as the court consider just.

25  -    Specifies that authorization for a court to increase the
         award of damages applies to willful violation for the
26       purpose of financial gain.

27  -    Provides an exception from criminal or civil liability
         for state and local agencies (including law enforcement
28       agencies), municipalities, authorities, and communication
         providers if they do not act knowingly and with intent to
29       defraud a communications service provider.

30  -    Provides that s. 812.15, F.S., does not require that the
         design of, or design and selection of parts, software
31       code, or components for, a communications device provide
         for a response to any particular technology, device, or
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    Florida Senate - 2003                           CS for SB 1078
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 1       software, or any component or part thereof, used by the
         provider, owner, or licensee of any communications
 2       service or of any data, audio or video programs, or
         transmissions to protect any of them from unauthorized
 3       receipt, acquisition, interception, access, decryption,
         disclosure, communication, transmission, or
 4       retransmission.

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