Florida Senate - 2013                          SENATOR AMENDMENT
       Bill No. CS for HB 953
                                Barcode 217524                          
                              LEGISLATIVE ACTION                        
                    Senate             .             House              

       Senator Brandes moved the following:
    1         Senate Amendment (with title amendment)
    3         Between lines 73 and 74
    4  insert:
    5         Section 3.Location informational tracking; prohibited
    6         search and seizure.-
    7         (1) FINDINGS.-The Legislature finds that existing law
    8  authorizes a court to issue a warrant for the search of a place
    9  and the seizure of property or things identified in the warrant
   10  when there is probable cause to believe that specified grounds
   11  exist. The Legislature also finds that existing law provides for
   12  a judicial procedure for the acquisition of stored
   13  communications in the possession of a provider of electronic
   14  communication service or a remote computing service.
   15         (2) INTENT.-It is the intent of the Legislature to prohibit
   16  a governmental entity from obtaining the location information of
   17  an electronic device without a valid court order issued by a
   18  duly authorized judicial officer unless certain exceptions
   19  apply, including in an emergency or when requested by the owner
   20  of the device. However, it is also the intent of the Legislature
   21  that this act, with certain exceptions, prohibits the use of
   22  information obtained in violation of this section in a civil or
   23  administrative hearing.
   24         (3) DEFINITIONS.-As used in this section, the term:
   25         (a) “Electronic communication service” means a service that
   26  provides to its users the ability to send or receive wire or
   27  electronic communications.
   28         (b) “Governmental entity” means a state or local agency,
   29  including, but not limited to, a law enforcement entity or any
   30  other investigative entity, agency, department, division,
   31  bureau, board, or commission, or an individual acting or
   32  purporting to act for or on behalf of a state or local agency.
   33         (c) “Location information” means information, concerning
   34  the location of an electronic device, including both the current
   35  location and any previous location of the device, which, in
   36  whole or in part, is generated, derived from, or obtained by the
   37  operation of an electronic device.
   38         (d) “Location information service” means the provision of a
   39  global positioning service or other mapping, locational, or
   40  directional information service.
   41         (e) “Owner” means the person or entity recognized by the
   42  law as having the legal title, claim, or right to an electronic
   43  device.
   44         (f)“Portable electronic device” means an object capable of
   45  being easily transported or conveyed by a person which is
   46  capable of creating, receiving, accessing, or storing electronic
   47  data or communications and communicates by any means with
   48  another entity or individual.
   49         (g) “Remote computing service” means the provision of
   50  computer storage or processing services by means of an
   51  electronic communications system.
   52         (h) “User” means a person or entity that uses an electronic
   53  device.
   54         (4) PROHIBITED ACTS.-
   55         (a) A law enforcement agency or other governmental entity
   56  may not obtain the location information of an electronic device
   57  without a valid court order issued by a duly authorized judicial
   58  officer using the procedure set forth in this section.
   59         (b)An investigative or law enforcement officer may make
   60  application to a judge of competent jurisdiction for an order
   61  authorizing or approving the search for and seizure of the
   62  location information related to a specific electronic device or
   63  any electronic device used by a particular person.
   64         (c)The application must include:
   65         1.A statement of the identity of the applicant and the
   66  identity of the law enforcement agency conducting the
   67  investigation.
   68         2.A certification by the applicant that the information
   69  likely to be obtained is relevant to an ongoing criminal
   70  investigation being conducted by the investigating agency, or a
   71  non-criminal investigation being conducted to prevent harm to a
   72  person.
   73         3.A statement of the offense to which the information
   74  likely to be obtained relates, if applicable.
   75         4.A statement as to whether it may be necessary to monitor
   76  the electronic device outside the jurisdiction of the court from
   77  which authorization is being sought.
   78         (d)If the court finds that the required certification and
   79  statements have been made in the application, the court shall
   80  enter an ex parte order authorizing the monitoring of a specific
   81  electronic device or authorize the monitoring of any device
   82  being used by a specific person during the time period for which
   83  an order may be issued under this section. Such order may
   84  authorize the monitoring of the device within the jurisdiction
   85  of the court and outside that jurisdiction, but within this
   86  state.
   87         (e)A court may not require greater specificity or
   88  additional information beyond that which is required by this
   89  section as a requisite for issuing an order.
   90         (f) A court order may not be issued for the location of an
   91  electronic device pursuant to this section for a period of time
   92  longer than is necessary to achieve the objective of the
   93  authorization, and in any event no longer than 30 days,
   94  commencing on the day the order is issued, or 10 days after the
   95  location information is initially obtained, whichever comes
   96  first.
   97         (g) Extensions of an order may be granted, but only upon a
   98  judge finding that the extension is necessary to achieve the
   99  objective of the original authorization. Each extension granted
  100  for an order pursuant to this section may not exceed the time
  101  period that the authorizing judge deems necessary to achieve the
  102  purposes for which the order was originally granted, but in any
  103  event, each extension may not exceed 60 days.
  104         (5) EXCEPTIONS.—Notwithstanding subsection (4), a
  105  governmental entity may obtain location information without a
  106  court order if disclosure of the location information is not
  107  prohibited by federal law and any of the following circumstances
  108  exists:
  109         (a)Transponders used for the purpose of assessing or
  110  collecting tolls.
  111         (b) Reliance by a law enforcement agency or other
  112  governmental entity on lawful exceptions to the warrant
  113  requirement.
  114         (c)A high risk of a terrorist attack by a specific
  115  individual or organization if the United States Secretary of
  116  Homeland Security determines that credible intelligence
  117  indicates that there is such a risk.
  118         (d) Cases of a search for a missing endangered person, as
  119  defined in s. 937.0201.
  120         (e) In order to respond to any user’s call for emergency
  121  services.
  122         (f) With the informed, affirmative consent of the owner or
  123  user of the electronic device; however the owner or user may not
  124  consent to the disclosure of location information if the device
  125  is known or believed to be in the possession of, or attached to
  126  a possession of, a third party known to the owner or user and to
  127  whom the owner or user has intentionally provided electronic
  128  device, unless the third party is under 18 years of age. The
  129  informed, affirmative consent of the owner or user of the
  130  electronic device may not be used as consent to disclose the
  131  location information of another portable electronic device that
  132  may be remotely linked or connected to the owner or user of the
  133  subject portable electronic device.
  134         (g) With the informed, affirmative consent of the legal
  135  guardian or next of kin of the electronic device’s owner or
  136  user, if the owner or user is believed to be deceased or has
  137  been reported missing and unable to be contacted.
  138         (h) If the governmental entity reasonably believes that an
  139  emergency involving immediate danger of death or serious
  140  physical injury to a person requires the disclosure, without
  141  delay, of location information concerning a specific person or
  142  persons and that a court order cannot be obtained in time to
  143  prevent the identified danger and the possessor of the location
  144  information, in good faith, believes that an emergency involving
  145  danger of death or serious physical injury to a person requires
  146  the disclosure without delay.
  147         (6) REMEDY.—
  148         (a) Any aggrieved person in a trial, hearing, or proceeding
  149  in or before a court, department, officer, agency, regulatory
  150  body, or other authority may move to suppress the contents of
  151  information contained in a portable electronic device or
  152  evidence derived therefrom, on the grounds that:
  153         1. The information was unlawfully obtained;
  154         2. The order of authorization or approval under which it
  155  was obtained is insufficient on its face; or
  156         3. The information was not obtained in conformity with the
  157  order of authorization or approval.
  159  Such motion shall be made before the trial, hearing, or
  160  proceeding unless there was no opportunity to make such motion
  161  or the person was not aware of the grounds of the motion. If the
  162  motion is granted, the information or evidence derived therefrom
  163  shall be suppressed. The judge, upon the filing of such motion
  164  by the aggrieved person, may make available to the aggrieved
  165  person or his or her counsel for inspection such portions of the
  166  information or evidence derived therefrom as the judge
  167  determines to be in the interest of justice.
  168         (b) In addition to any other right to appeal, the state has
  169  the right to appeal from an order granting a motion to suppress
  170  made under paragraph (a) or the denial of an application for an
  171  order of approval if the attorney certifies to the judge or
  172  other official granting such motion or denying such application
  173  that the appeal is not taken for purposes of delay. Such appeal
  174  shall be taken within 30 days after the date the order was
  175  entered and shall be diligently prosecuted.
  176         (c) The remedies and sanctions described herein with
  177  respect to the information contained in a portable electronic
  178  device are the only judicial remedies and sanctions for
  179  violations of those sections involving such information.
  180         (7) CAUSE OF ACTION.—This section does not create a cause
  181  of action against any foreign or Florida private entity, its
  182  officers, employees, agents, or other specified persons for
  183  providing location information.
  185  ================= T I T L E  A M E N D M E N T ================
  186         And the title is amended as follows:
  187         Delete line 15
  188  and insert:
  189         “electronic signature”; prohibiting location
  190         informational tracking; providing legislative findings
  191         and intent; defining terms; prohibiting a governmental
  192         entity from obtaining the location information of an
  193         electronic device without a valid court order issued
  194         by a duly authorized judicial officer; providing that
  195         a court order may not be issued for the location of an
  196         electronic device for a period of time longer than is
  197         necessary to achieve the objective of the court order;
  198         providing time periods for the validity of a court
  199         order; providing criteria by which a court order for
  200         location information may be extended; providing
  201         exceptions to the requirement that a court order be
  202         obtained for location information; providing a remedy;
  203         providing applicability; providing an effective date.