Senate Bill sb2596

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    Florida Senate - 2003                                  SB 2596

    By Senator Aronberg





    27-1333A-03                                        See HB 1161

  1                      A bill to be entitled

  2         An act relating to identity theft and Internet

  3         fraud prevention, investigation, and

  4         prosecution; amending s. 817.568, F.S.;

  5         providing for penalty provisions for the

  6         commission of a first degree and second degree

  7         felony concerning identity theft under certain

  8         circumstances; providing for higher offense

  9         severity levels in identity theft cases under

10         certain circumstances; providing that every

11         Florida consumer may be provided two free

12         credit reports a year; amending s. 934.23,

13         F.S.; providing a definition; clarifying that

14         Florida judges with jurisdiction over specific

15         crimes have authority to issue search warrants

16         for electronic evidence relating thereto,

17         regardless of where the electronic evidence is

18         situated; creating s. 92.605, F.S.; providing

19         definitions; providing for self-authentication

20         for out-of-state business records under certain

21         circumstances with notice to opponent;

22         providing for procedures; providing an

23         effective date.

24  

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

26  

27         Section 1.  Paragraph (b) of subsection (2) of section

28  817.568, Florida Statutes, is amended, paragraph (c) is added

29  to that subsection, subsections (5), (6), (7), (8), (9), and

30  (10) are renumbered as subsections (7), (8), (9), (10), (11),

31  

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    Florida Senate - 2003                                  SB 2596
    27-1333A-03                                        See HB 1161




 1  and (12), respectively, and new subsections (5) and (6) are

 2  added to that section, to read:

 3         817.568  Criminal use of personal identification

 4  information.--

 5         (2)

 6         (b)  Any person who willfully and without authorization

 7  fraudulently uses personal identification information

 8  concerning an individual without first obtaining that

 9  individual's consent commits a felony of the second degree,

10  punishable as provided in s. 775.082, s. 775.083, or s.

11  775.084, if the pecuniary benefit, the value of the services

12  received, the payment sought to be avoided, or the amount of

13  the injury or fraud perpetrated is not less than $20,000 or

14  more than $100,000 $75,000 or more.

15         (c)  Any person who willfully and without authorization

16  fraudulently uses personal identification information

17  concerning an individual without first obtaining that

18  individual's consent commits a felony of the first degree,

19  punishable as provided in s. 775.082, s. 775.083, or s.

20  775.084, if the pecuniary benefit, the value of the services

21  received, the payment sought to be avoided, or the amount of

22  the injury or fraud perpetrated is $100,000 or more.

23         (5)  If an offense prohibited under this section was

24  committed using the personal identification information of a

25  child, its offense severity level shall be increased to

26  offense severity level 8; if the child involved was the

27  defendant's natural child or any child over whom the defendant

28  had custodial authority, the offense severity level shall be

29  increased to offense severity level 9.

30         (6)  Any consumer reporting agency as defined in s.

31  603(f) of the Fair Credit Reporting Act shall provide, free of

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    Florida Senate - 2003                                  SB 2596
    27-1333A-03                                        See HB 1161




 1  charge, upon the request of any person and without regard to

 2  any failure to extend credit to that person, up to two

 3  consumer reports each calendar year, including explanations of

 4  any codes contained therein.

 5         Section 2.  Subsection (1) of section 934.23, Florida

 6  Statutes, is amended to read:

 7         934.23  Required disclosure of customer communications

 8  or records.--

 9         (1)  An investigative or law enforcement officer may

10  require the disclosure by a provider of electronic

11  communication service of the contents of a wire or electronic

12  communication that has been in electronic storage in an

13  electronic communications system for 180 days or less only

14  pursuant to a warrant issued by the judge of a court of

15  competent jurisdiction. For purposes of this section, "a court

16  of competent jurisdiction" means a court having jurisdiction

17  over the investigation or otherwise authorized by law. An

18  investigative or law enforcement officer may require the

19  disclosure by a provider of electronic communication services

20  of the contents of a wire or electronic communication that has

21  been in electronic storage in an electronic communications

22  system for more than 180 days by the means available under

23  subsection (2).

24         Section 3.  Section 92.605, Florida Statutes, is

25  created to read:

26         92.605  Production of certain records by Florida

27  corporations and out-of-state corporations.

28         (1)  For the purposes of this section, the term:

29         (a)  "Adverse result" includes one of the following

30  consequences to notification of the existence of a court

31  order, a subpoena, or a search warrant:

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    Florida Senate - 2003                                  SB 2596
    27-1333A-03                                        See HB 1161




 1         1.  Danger to the life or physical safety of an

 2  individual.

 3         2.  A flight from prosecution.

 4         3.  The destruction of or tampering with evidence.

 5         4.  The intimidation of potential witnesses.

 6         5.  Serious jeopardy to an investigation or undue delay

 7  of a trial.

 8         (b)  "Applicant" means a law enforcement officer who is

 9  seeking a court order or subpoena under s. 16.56, s. 27.04, s.

10  905.185, or s. 914.04 or who is issued a search warrant under

11  s. 933.01, or anyone who is authorized to issue a subpoena

12  under the Florida Rules of Criminal Procedure.

13         (c)  "Business" means any business, institution,

14  association, profession, occupation, or calling of any kind,

15  whether or not conducted for profit.

16         (d)  "Electronic communication services" and "remote

17  computing services" have the same meaning as provided in the

18  Electronic Communications Privacy Act in chapter 121

19  (commencing with s. 2701) of Part I of Title 18 of the United

20  States Code Annotated. This section does not apply to

21  corporations that do not provide those services to the public.

22         (e)  "Florida corporation" means any corporation or

23  other entity that is regulated under chapter 607, excluding

24  out-of-state corporations.

25         (f)  "Out-of-state corporation" means any corporation

26  that is qualified to do business in this state under s.

27  607.1501.

28         (g)  "Out-of-state record of regularly conducted

29  business activity" means a memorandum, report, record, or data

30  compilation, in any form, of acts, events, conditions,

31  

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    Florida Senate - 2003                                  SB 2596
    27-1333A-03                                        See HB 1161




 1  opinions, or diagnoses, maintained in another state or

 2  country.

 3         (h)  "Out-of-state certification" means a written

 4  declaration made and signed in another state or country by the

 5  custodian of an out-of-state record of regularly conducted

 6  business activity or another qualified person that, if falsely

 7  made, would subject the declarant to criminal penalty under

 8  the laws of another state or country.

 9         (i)  "Properly served" means delivery by hand or in a

10  manner reasonably allowing for proof of delivery if delivered

11  by United States mail, overnight delivery service, or

12  facsimile to a person or entity properly registered to do

13  business in any state.

14         (2)  The following provisions apply to any subpoena,

15  court order, or search warrant issued in compliance with the

16  Electronic Communications Privacy Act in chapter 121

17  (commencing with s. 2701) of Part I of Title 18 of the United

18  States Code and that is subject to this chapter, which allows

19  a search for records that are in the actual or constructive

20  possession of an out-of-state corporation that provides

21  electronic communication services or remote computing services

22  to the public, when those records would reveal the identity of

23  the customers using those services; data stored by, or on

24  behalf of, the customers; the customers' usage of those

25  services; the recipients or destinations of communications

26  sent to or from those customers.

27         (a)  When properly served with a subpoena, court order,

28  or search warrant issued by a Florida court, an out-of-state

29  corporation subject to this section shall provide to the

30  applicant all records sought pursuant to such subpoena, court

31  order, or warrant within 10 business days after receipt, or

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    Florida Senate - 2003                                  SB 2596
    27-1333A-03                                        See HB 1161




 1  the date indicated within the subpoena, if later, including

 2  those records maintained or located outside the State of

 3  Florida.

 4         (b)  When the applicant makes a showing and the court

 5  finds that failure to produce records within 10 business days

 6  would cause an adverse result, the subpoena, court order, or

 7  warrant may require production of records within less than 10

 8  business days. A court may reasonably extend the time required

 9  for production of the records upon finding that the

10  out-of-state corporation has shown good cause for that

11  extension and that an extension of time would not cause an

12  adverse result.

13         (c)  An out-of-state corporation seeking to quash the

14  subpoena, court order, or warrant must seek relief from the

15  court issuing such subpoena, court order, or warrant within

16  the time required for production of records under this

17  section. The issuing court shall hear and decide that motion

18  within 5 court days after the motion is filed.

19         (d)  The out-of-state corporation shall verify the

20  authenticity of records that it produces by providing an

21  affidavit that complies with the requirements set forth in

22  this section. Records produced in compliance with this section

23  are admissible in evidence as set forth in subsection (5).

24         (3)  A Florida corporation that provides electronic

25  communication services or remote computing services to the

26  public, when served with a subpoena, court order, or warrant

27  issued by another state to produce records that would reveal

28  the identity of the customers using those services; data

29  stored by, or on behalf of, the customers; the customers'

30  usage of those services; or the recipients or destinations of

31  communications sent to or from those customers shall produce

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    Florida Senate - 2003                                  SB 2596
    27-1333A-03                                        See HB 1161




 1  those records as if that subpoena, court order, or warrant had

 2  been issued by a Florida court.

 3         (4)  A cause of action does not arise against any

 4  out-of-state or Florida corporation subject to this section,

 5  or its officers, employees, agents, or other specified

 6  persons, for providing records, information, facilities, or

 7  assistance in accordance with the terms of a subpoena, court

 8  order, or warrant subject to this section.

 9         (5)  In a criminal proceeding in a court of this state,

10  an out-of-state record of regularly conducted business

11  activity, or a copy of such record, shall not be excluded as

12  hearsay evidence by s. 90.802, if an out-of-state

13  certification attests that:

14         (a)  Such record was made at or near the time of the

15  occurrence of the matters set forth by, or from information

16  transmitted by, a person with knowledge of those matters.

17         (b)  Such record was kept in the course of a regularly

18  conducted business activity.

19         (c)  The business activity made such a record as a

20  regular practice.

21         (d)  If such record is not the original, it is a

22  duplicate of the original, unless the source of information or

23  the method or circumstances of preparation indicate lack of

24  trustworthiness.

25         (6)  An out-of-state certification under this section

26  shall authenticate such record or duplicate.

27         (7)  No evidence in such records in the form of opinion

28  or diagnosis is admissible under subsection (5) unless such

29  opinion or diagnosis would be admissible under ss.

30  90.701-90.705 if the person whose opinion is recorded were to

31  testify to the opinion directly.

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    Florida Senate - 2003                                  SB 2596
    27-1333A-03                                        See HB 1161




 1         (8)  As soon after the arraignment as practicable, or

 2  60 days prior to trial, a party intending to offer in evidence

 3  under this section an out-of-state record of regularly

 4  conducted business activity shall provide written notice of

 5  that intention to each other party. A motion opposing

 6  admission in evidence of such record shall be made by the

 7  opposing party and determined by the court before

 8  trial.  Failure by a party to file such motion before trial

 9  shall constitute a waiver of objection to such record or

10  duplicate, but the court for cause shown may grant relief from

11  the waiver.

12         (9)  In any criminal case, the content of any

13  electronic communication may be obtained under this section

14  only by court order or by the issuance of a search warrant,

15  unless otherwise provided under the Electronic Communications

16  Privacy Act or other provision of law.

17         Section 4.  This act shall take effect July 1, 2003.

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