ENROLLED 2015 Legislature CS for CS for SB 538, 1st Engrossed 2015538er 1 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. 21 22 Be It Enacted by the Legislature of the State of Florida: 23 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;
or121 (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. 128 129 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.