HB 1043

1
A bill to be entitled
2An act relating to criminal use of personal
3identification; amending s. 817.568, F.S.; providing that
4it is a third-degree felony to willfully and without
5authorization disclose, sell, or transfer, or attempt to
6disclose, sell, or transfer, personal identification
7information concerning an individual, including
8information sent to a foreign country, without first
9obtaining the consent of the individual; providing
10criminal penalties; providing that a violation of s.
11817.568, F.S., is a deceptive and unfair trade practice
12and a violation of part II of ch. 501, F.S.; providing
13civil penalties; providing that the remedies are
14cumulative and not exclusive; providing an effective date.
15
16Be It Enacted by the Legislature of the State of Florida:
17
18     Section 1.  Section 817.568, Florida Statutes, is amended
19to read:
20     817.568  Criminal use of personal identification
21information.--
22     (1)  As used in this section, the term:
23     (a)  "Access device" means any card, plate, code, account
24number, electronic serial number, mobile identification number,
25personal identification number, or other telecommunications
26service, equipment, or instrument identifier, or other means of
27account access that can be used, alone or in conjunction with
28another access device, to obtain money, goods, services, or any
29other thing of value, or that can be used to initiate a transfer
30of funds, other than a transfer originated solely by paper
31instrument.
32     (b)  "Authorization" means empowerment, permission, or
33competence to act.
34     (c)  "Harass" means to engage in conduct directed at a
35specific person that is intended to cause substantial emotional
36distress to such person and serves no legitimate purpose.
37"Harass" does not mean to use personal identification
38information for accepted commercial purposes. The term does not
39include constitutionally protected conduct such as organized
40protests or the use of personal identification information for
41accepted commercial purposes.
42     (d)  "Individual" means a single human being and does not
43mean a firm, association of individuals, corporation,
44partnership, joint venture, sole proprietorship, or any other
45entity.
46     (e)  "Person" means a "person" as defined in s. 1.01(3).
47     (f)  "Personal identification information" means any name
48or number that may be used, alone or in conjunction with any
49other information, to identify a specific individual, including
50any:
51     1.  Name, postal or electronic mail address, telephone
52number, social security number, date of birth, mother's maiden
53name, official state-issued or United States-issued driver's
54license or identification number, alien registration number,
55government passport number, employer or taxpayer identification
56number, Medicaid or food stamp account number, bank account
57number, credit or debit card number, or personal identification
58number or code assigned to the holder of a debit card by the
59issuer to permit authorized electronic use of such card;
60     2.  Unique biometric data, such as fingerprint, voice
61print, retina or iris image, or other unique physical
62representation;
63     3.  Unique electronic identification number, address, or
64routing code;
65     4.  Medical records;
66     5.  Telecommunication identifying information or access
67device; or
68     6.  Other number or information that can be used to access
69a person's financial resources.
70     (g)  "Counterfeit or fictitious personal identification
71information" means any counterfeit, fictitious, or fabricated
72information in the similitude of the data outlined in paragraph
73(f) that, although not truthful or accurate, would in context
74lead a reasonably prudent person to credit its truthfulness and
75accuracy.
76     (2)(a)  Any person who willfully and without authorization
77fraudulently uses, or possesses with intent to fraudulently use,
78personal identification information concerning an individual
79without first obtaining that individual's consent, commits the
80offense of fraudulent use of personal identification
81information, which is a felony of the third degree, punishable
82as provided in s. 775.082, s. 775.083, or s. 775.084.
83     (b)  Any person who willfully and without authorization
84fraudulently uses personal identification information concerning
85an individual without first obtaining that individual's consent
86commits a felony of the second degree, punishable as provided in
87s. 775.082, s. 775.083, or s. 775.084, if the pecuniary benefit,
88the value of the services received, the payment sought to be
89avoided, or the amount of the injury or fraud perpetrated is
90$5,000 or more or if the person fraudulently uses the personal
91identification information of 10 or more individuals, but fewer
92than 20 individuals, without their consent. Notwithstanding any
93other provision of law, the court shall sentence any person
94convicted of committing the offense described in this paragraph
95to a mandatory minimum sentence of 3 years' imprisonment.
96     (c)  Any person who willfully and without authorization
97fraudulently uses personal identification information concerning
98an individual without first obtaining that individual's consent
99commits a felony of the first degree, punishable as provided in
100s. 775.082, s. 775.083, or s. 775.084, if the pecuniary benefit,
101the value of the services received, the payment sought to be
102avoided, or the amount of the injury or fraud perpetrated is
103$50,000 or more or if the person fraudulently uses the personal
104identification information of 20 or more individuals, but fewer
105than 30 individuals, without their consent. Notwithstanding any
106other provision of law, the court shall sentence any person
107convicted of committing the offense described in this paragraph
108to a mandatory minimum sentence of 5 years' imprisonment. If the
109pecuniary benefit, the value of the services received, the
110payment sought to be avoided, or the amount of the injury or
111fraud perpetrated is $100,000 or more, or if the person
112fraudulently uses the personal identification information of 30
113or more individuals without their consent, notwithstanding any
114other provision of law, the court shall sentence any person
115convicted of committing the offense described in this paragraph
116to a mandatory minimum sentence of 10 years' imprisonment.
117     (3)  Neither paragraph (2)(b) nor paragraph (2)(c) prevents
118a court from imposing a greater sentence of incarceration as
119authorized by law. If the minimum mandatory terms of
120imprisonment imposed under paragraph (2)(b) or paragraph (2)(c)
121exceed the maximum sentences authorized under s. 775.082, s.
122775.084, or the Criminal Punishment Code under chapter 921, the
123mandatory minimum sentence must be imposed. If the mandatory
124minimum terms of imprisonment under paragraph (2)(b) or
125paragraph (2)(c) are less than the sentence that could be
126imposed under s. 775.082, s. 775.084, or the Criminal Punishment
127Code under chapter 921, the sentence imposed by the court must
128include the mandatory minimum term of imprisonment as required
129by paragraph (2)(b) or paragraph (2)(c).
130     (4)  Any person who willfully and without authorization
131possesses, uses, or attempts to use personal identification
132information concerning an individual without first obtaining
133that individual's consent, and who does so for the purpose of
134harassing that individual, commits the offense of harassment by
135use of personal identification information, which is a
136misdemeanor of the first degree, punishable as provided in s.
137775.082 or s. 775.083.
138     (5)  If an offense prohibited under this section was
139facilitated or furthered by the use of a public record, as
140defined in s. 119.011, the offense is reclassified to the next
141higher degree as follows:
142     (a)  A misdemeanor of the first degree is reclassified as a
143felony of the third degree.
144     (b)  A felony of the third degree is reclassified as a
145felony of the second degree.
146     (c)  A felony of the second degree is reclassified as a
147felony of the first degree.
148
149For purposes of sentencing under chapter 921 and incentive gain-
150time eligibility under chapter 944, a felony offense that is
151reclassified under this subsection is ranked one level above the
152ranking under s. 921.0022 of the felony offense committed, and a
153misdemeanor offense that is reclassified under this subsection
154is ranked in level 2 of the offense severity ranking chart in s.
155921.0022.
156     (6)  Any person who willfully and without authorization
157fraudulently uses personal identification information concerning
158an individual who is less than 18 years of age without first
159obtaining the consent of that individual or of his or her legal
160guardian commits a felony of the second degree, punishable as
161provided in s. 775.082, s. 775.083, or s. 775.084.
162     (7)  Any person who is in the relationship of parent or
163legal guardian, or who otherwise exercises custodial authority
164over an individual who is less than 18 years of age, who
165willfully and fraudulently uses personal identification
166information of that individual commits a felony of the second
167degree, punishable as provided in s. 775.082, s. 775.083, or s.
168775.084.
169     (8)(a)  Any person who willfully and fraudulently uses, or
170possesses with intent to fraudulently use, personal
171identification information concerning a deceased individual
172commits the offense of fraudulent use or possession with intent
173to use personal identification information of a deceased
174individual, a felony of the third degree, punishable as provided
175in s. 775.082, s. 775.083, or s. 775.084.
176     (b)  Any person who willfully and fraudulently uses
177personal identification information concerning a deceased
178individual commits a felony of the second degree, punishable as
179provided in s. 775.082, s. 775.083, or s. 775.084, if the
180pecuniary benefit, the value of the services received, the
181payment sought to be avoided, or the amount of injury or fraud
182perpetrated is $5,000 or more, or if the person fraudulently
183uses the personal identification information of 10 or more but
184fewer than 20 deceased individuals. Notwithstanding any other
185provision of law, the court shall sentence any person convicted
186of committing the offense described in this paragraph to a
187mandatory minimum sentence of 3 years' imprisonment.
188     (c)  Any person who willfully and fraudulently uses
189personal identification information concerning a deceased
190individual commits the offense of aggravated fraudulent use of
191the personal identification information of multiple deceased
192individuals, a felony of the first degree, punishable as
193provided in s. 775.082, s. 775.083, or s. 775.084, if the
194pecuniary benefit, the value of the services received, the
195payment sought to be avoided, or the amount of injury or fraud
196perpetrated is $50,000 or more, or if the person fraudulently
197uses the personal identification information of 20 or more but
198fewer than 30 deceased individuals. Notwithstanding any other
199provision of law, the court shall sentence any person convicted
200of the offense described in this paragraph to a minimum
201mandatory sentence of 5 years' imprisonment. If the pecuniary
202benefit, the value of the services received, the payment sought
203to be avoided, or the amount of the injury or fraud perpetrated
204is $100,000 or more, or if the person fraudulently uses the
205personal identification information of 30 or more deceased
206individuals, notwithstanding any other provision of law, the
207court shall sentence any person convicted of an offense
208described in this paragraph to a mandatory minimum sentence of
20910 years' imprisonment.
210     (9)  Any person who willfully and fraudulently creates or
211uses, or possesses with intent to fraudulently use, counterfeit
212or fictitious personal identification information concerning a
213fictitious individual, or concerning a real individual without
214first obtaining that real individual's consent, with intent to
215use such counterfeit or fictitious personal identification
216information for the purpose of committing or facilitating the
217commission of a fraud on another person, commits the offense of
218fraudulent creation or use, or possession with intent to
219fraudulently use, counterfeit or fictitious personal
220identification information, a felony of the third degree,
221punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
222     (10)  Any person who commits an offense described in this
223section and for the purpose of obtaining or using personal
224identification information misrepresents himself or herself to
225be a law enforcement officer; an employee or representative of a
226bank, credit card company, credit counseling company, or credit
227reporting agency; or any person who wrongfully represents that
228he or she is seeking to assist the victim with a problem with
229the victim's credit history shall have the offense reclassified
230as follows:
231     (a)  In the case of a misdemeanor, the offense is
232reclassified as a felony of the third degree.
233     (b)  In the case of a felony of the third degree, the
234offense is reclassified as a felony of the second degree.
235     (c)  In the case of a felony of the second degree, the
236offense is reclassified as a felony of the first degree.
237     (d)  In the case of a felony of the first degree or a
238felony of the first degree punishable by a term of imprisonment
239not exceeding life, the offense is reclassified as a life
240felony.
241
242For purposes of sentencing under chapter 921, a felony offense
243that is reclassified under this subsection is ranked one level
244above the ranking under s. 921.0022 or s. 921.0023 of the felony
245offense committed, and a misdemeanor offense that is
246reclassified under this subsection is ranked in level 2 of the
247offense severity ranking chart.
248     (11)  A person who willfully and without authorization
249discloses, sells, or transfers, or attempts to disclose, sell,
250or transfer, personal identification information concerning an
251individual, including personal identification information sent
252to a foreign country, without first obtaining the consent of the
253individual commits the offense of fraudulent disclosure, sale,
254or transfer of personal identification information, a felony of
255the third degree.
256     (12)  A person who violates this section commits a
257deceptive and unfair trade practice in violation of part II of
258chapter 501 and is subject to the penalties and remedies
259provided under that chapter, in addition to remedies otherwise
260available for such conduct.
261     (13)(11)  The prosecutor may move the sentencing court to
262reduce or suspend the sentence of any person who is convicted of
263a violation of this section and who provides substantial
264assistance in the identification, arrest, or conviction of any
265of that person's accomplices, accessories, coconspirators, or
266principals or of any other person engaged in fraudulent
267possession or use of personal identification information. The
268arresting agency shall be given an opportunity to be heard in
269aggravation or mitigation in reference to any such motion. Upon
270good cause shown, the motion may be filed and heard in camera.
271The judge hearing the motion may reduce or suspend the sentence
272if the judge finds that the defendant rendered such substantial
273assistance.
274     (14)(12)  This section does not prohibit any lawfully
275authorized investigative, protective, or intelligence activity
276of a law enforcement agency of this state or any of its
277political subdivisions, of any other state or its political
278subdivisions, or of the Federal Government or its political
279subdivisions.
280     (15)(13)(a)  In sentencing a defendant convicted of an
281offense under this section, the court may order that the
282defendant make restitution under s. 775.089 to any victim of the
283offense. In addition to the victim's out-of-pocket costs,
284restitution may include payment of any other costs, including
285attorney's fees incurred by the victim in clearing the victim's
286credit history or credit rating, or any costs incurred in
287connection with any civil or administrative proceeding to
288satisfy any debt, lien, or other obligation of the victim
289arising as the result of the actions of the defendant.
290     (b)  The sentencing court may issue such orders as are
291necessary to correct any public record that contains false
292information given in violation of this section.
293     (16)(14)  Prosecutions for violations of this section may
294be brought on behalf of the state by any state attorney or by
295the statewide prosecutor.
296     (17)(15)  The Legislature finds that, in the absence of
297evidence to the contrary, the location where a victim gives or
298fails to give consent to the use of personal identification
299information is the county where the victim generally resides.
300     (18)(16)  Notwithstanding any other provision of law, venue
301for the prosecution and trial of violations of this section may
302be commenced and maintained in any county in which an element of
303the offense occurred, including the county where the victim
304generally resides.
305     (19)(17)  A prosecution of an offense prohibited under
306subsection (2), subsection (6), or subsection (7) must be
307commenced within 3 years after the offense occurred. However, a
308prosecution may be commenced within 1 year after discovery of
309the offense by an aggrieved party, or by a person who has a
310legal duty to represent the aggrieved party and who is not a
311party to the offense, if such prosecution is commenced within 5
312years after the violation occurred.
313     Section 2.  This act shall take effect July 1, 2006.


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