CS for CS for SB 538                             First Engrossed
    1                        A bill to be entitled                      
    2         An act relating to sexual cyberharassment; creating s.
    3         784.049, F.S.; providing legislative findings;
    4         providing definitions; prohibiting a person from
    5         willfully and maliciously sexually cyberharassing
    6         another person; providing penalties; authorizing a law
    7         enforcement officer to arrest, without a warrant, any
    8         person that he or she has probable cause to believe
    9         has committed sexual cyberharassment; authorizing a
   10         search warrant to be issued in specified instances;
   11         providing civil remedies; providing exceptions;
   12         specifying the circumstances in which a violation
   13         occurs in this state; amending s. 901.15, F.S.;
   14         authorizing a law enforcement officer to arrest,
   15         without a warrant, any person that he or she has
   16         probable cause to believe has committed sexual
   17         cyberharassment; amending s. 933.18, F.S.; providing
   18         an exception to the prohibition on search warrants
   19         being issued to search private dwellings; providing an
   20         effective date.
   22  Be It Enacted by the Legislature of the State of Florida:
   24         Section 1. Section 784.049, Florida Statutes, is created to
   25  read:
   26         784.049 Sexual cyberharassment.—
   27         (1) The Legislature finds that:
   28         (a) A person depicted in a sexually explicit image taken
   29  with the person’s consent has a reasonable expectation that the
   30  image will remain private.
   31         (b) It is becoming a common practice for persons to publish
   32  a sexually explicit image of another to Internet websites
   33  without the depicted person’s consent, for no legitimate
   34  purpose, with the intent of causing substantial emotional
   35  distress to the depicted person.
   36         (c) When such images are published on Internet websites,
   37  they are able to be viewed indefinitely by persons worldwide and
   38  are able to be easily reproduced and shared.
   39         (d) The publication of such images on Internet websites
   40  creates a permanent record of the depicted person’s private
   41  nudity or private sexually explicit conduct.
   42         (e) The existence of such images on Internet websites
   43  causes those depicted in such images significant psychological
   44  harm.
   45         (f) Safeguarding the psychological well-being of persons
   46  depicted in such images is compelling.
   47         (2) As used in this section, the term:
   48         (a) “Image” includes, but is not limited to, any
   49  photograph, picture, motion picture, film, video, or
   50  representation.
   51         (b) “Personal identification information” has the same
   52  meaning as provided in s. 817.568.
   53         (c) “Sexually cyberharass” means to publish a sexually
   54  explicit image of a person that contains or conveys the personal
   55  identification information of the depicted person to an Internet
   56  website without the depicted person’s consent, for no legitimate
   57  purpose, with the intent of causing substantial emotional
   58  distress to the depicted person.
   59         (d) “Sexually explicit image” means any image depicting
   60  nudity, as defined in s. 847.001, or depicting a person engaging
   61  in sexual conduct, as defined in s. 847.001.
   62         (3)(a) Except as provided in paragraph (b), a person who
   63  willfully and maliciously sexually cyberharasses another person
   64  commits a misdemeanor of the first degree, punishable as
   65  provided in s. 775.082 or s. 775.083.
   66         (b) A person who has one prior conviction for sexual
   67  cyberharassment and who commits a second or subsequent sexual
   68  cyberharassment commits a felony of the third degree, punishable
   69  as provided in s. 775.082, s. 775.083, or s. 775.084.
   70         (4)(a) A law enforcement officer may arrest, without a
   71  warrant, any person that he or she has probable cause to believe
   72  has violated this section.
   73         (b) Upon proper affidavits being made, a search warrant may
   74  be issued to further investigate violations of this section,
   75  including warrants issued to search a private dwelling.
   76         (5) An aggrieved person may initiate a civil action against
   77  a person who violates this section to obtain all appropriate
   78  relief in order to prevent or remedy a violation of this
   79  section, including the following:
   80         (a) Injunctive relief.
   81         (b) Monetary damages to include $5,000 or actual damages
   82  incurred as a result of a violation of this section, whichever
   83  is greater.
   84         (c) Reasonable attorney fees and costs.
   85         (6) The criminal and civil penalties of this section do not
   86  apply to:
   87         (a) A provider of an interactive computer service as
   88  defined in 47 U.S.C. s. 230(f), information service as defined
   89  in 47 U.S.C. s. 153, or communications service as defined in s.
   90  202.11, that provides the transmission, storage, or caching of
   91  electronic communications or messages of others; other related
   92  telecommunications or commercial mobile radio service; or
   93  content provided by another person; or
   94         (b) A law enforcement officer, as defined in s. 943.10, or
   95  any local, state, federal, or military law enforcement agency,
   96  that publishes a sexually explicit image in connection with the
   97  performance of his or her duties as a law enforcement officer,
   98  or law enforcement agency.
   99         (7) A violation of this section is committed within this
  100  state if any conduct that is an element of the offense, or any
  101  harm to the depicted person resulting from the offense, occurs
  102  within this state.
  103         Section 2. Subsection (16) is added to section 901.15,
  104  Florida Statutes, to read:
  105         901.15 When arrest by officer without warrant is lawful.—A
  106  law enforcement officer may arrest a person without a warrant
  107  when:
  108         (16) There is probable cause to believe that the person has
  109  committed a criminal act of sexual cyberharassment as described
  110  in s. 784.049.
  111         Section 3. Subsections (9) and (10) of section 933.18,
  112  Florida Statutes, are amended, and subsection (11) is added to
  113  that section, to read:
  114         933.18 When warrant may be issued for search of private
  115  dwelling.—No search warrant shall issue under this chapter or
  116  under any other law of this state to search any private dwelling
  117  occupied as such unless:
  118         (9) It is being used for the unlawful sale, possession, or
  119  purchase of wildlife, saltwater products, or freshwater fish
  120  being unlawfully kept therein; or
  121         (10) The laws in relation to cruelty to animals, as
  122  provided in chapter 828, have been or are being violated
  123  therein; or
  124         (11) An instrumentality or means by which sexual
  125  cyberharassment has been committed in violation of s. 784.049,
  126  or evidence relevant to proving that sexual cyberharassment has
  127  been committed in violation of s. 784.049, is contained therein.
  129  If, during a search pursuant to a warrant issued under this
  130  section, a child is discovered and appears to be in imminent
  131  danger, the law enforcement officer conducting such search may
  132  remove the child from the private dwelling and take the child
  133  into protective custody pursuant to chapter 39. The term
  134  “private dwelling” shall be construed to include the room or
  135  rooms used and occupied, not transiently but solely as a
  136  residence, in an apartment house, hotel, boardinghouse, or
  137  lodginghouse. No warrant shall be issued for the search of any
  138  private dwelling under any of the conditions hereinabove
  139  mentioned except on sworn proof by affidavit of some creditable
  140  witness that he or she has reason to believe that one of said
  141  conditions exists, which affidavit shall set forth the facts on
  142  which such reason for belief is based.
  143         Section 4. This act shall take effect October 1, 2015.