Florida Senate - 2018                        COMMITTEE AMENDMENT
       Bill No. SB 1256
                              LEGISLATIVE ACTION                        
                    Senate             .             House              

       The Committee on Criminal Justice (Brandes) recommended the
    1         Senate Amendment (with title amendment)
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 934.01, Florida Statutes, is amended to
    6  read:
    7         934.01 Legislative findings.—On the basis of its own
    8  investigations and of published studies, the Legislature makes
    9  the following findings:
   10         (1) Wire communications are normally conducted through the
   11  use of facilities which form part of an intrastate network. The
   12  same facilities are used for interstate and intrastate
   13  communications.
   14         (2) In order to protect effectively the privacy of wire,
   15  and oral, and electronic communications, to protect the
   16  integrity of court and administrative proceedings, and to
   17  prevent the obstruction of intrastate commerce, it is necessary
   18  for the Legislature to define the circumstances and conditions
   19  under which the interception of wire, and oral, and electronic
   20  communications may be authorized and to prohibit any
   21  unauthorized interception of such communications and the use of
   22  the contents thereof in evidence in courts and administrative
   23  proceedings.
   24         (3) Organized criminals make extensive use of wire, and
   25  oral, and electronic communications in their criminal
   26  activities. The interception of such communications to obtain
   27  evidence of the commission of crimes or to prevent their
   28  commission is an indispensable aid to law enforcement and the
   29  administration of justice.
   30         (4) To safeguard the privacy of innocent persons, the
   31  interception of wire, or oral, or electronic communications when
   32  none of the parties to the communication has consented to the
   33  interception should be allowed only when authorized by a court
   34  of competent jurisdiction and should remain under the control
   35  and supervision of the authorizing court. Interception of wire,
   36  and oral, and electronic communications should further be
   37  limited to certain major types of offenses and specific
   38  categories of crime with assurance that the interception is
   39  justified and that the information obtained thereby will not be
   40  misused.
   41         (5)To safeguard the privacy of innocent persons, the
   42  Legislature recognizes that the subjective expectation of
   43  privacy in precision location data that society is now prepared
   44  to accept is objectively reasonable. As such, the law
   45  enforcement collection of the precise location of a person,
   46  cellular phone, or portable electronic communication device
   47  without the consent of the person or owner of the cellular phone
   48  or portable electronic communication device should be allowed
   49  only when authorized by a warrant issued by a court of competent
   50  jurisdiction and should remain under the control and supervision
   51  of the authorizing court.
   52         (6)The Legislature recognizes that the use of portable
   53  electronic communication devices is growing at a rapidly
   54  increasing rate. These devices can store, and encourage the
   55  storing of, an almost limitless amount of personal and private
   56  information. Often linked to the Internet, these devices are
   57  commonly used to access personal and business information and
   58  databases in computers and servers that can be located anywhere
   59  in the world. The user of a portable electronic communication
   60  device has a reasonable and justifiable expectation of privacy
   61  in the information that these devices contain.
   62         (7)The Legislature recognizes that the use of household
   63  electronic devices, including microphone-enabled household
   64  devices, is growing at a rapidly increasing rate. These devices
   65  often contain microphones that listen for and respond to
   66  environmental triggers. These household devices are generally
   67  connected to and communicate through the Internet resulting in
   68  the storage of and accessibility to daily household information
   69  in a device itself or in a remote computing service. Persons
   70  should not have to choose between using household technological
   71  enhancements and conveniences or preserving the right to privacy
   72  in one’s home.
   73         Section 2. Subsection (2) of section 934.02, Florida
   74  Statutes, is amended, and subsections (27) and (28) are added to
   75  that section, to read:
   76         934.02 Definitions.—As used in this chapter:
   77         (2) “Oral communication” means any oral communication
   78  uttered by a person exhibiting an expectation that such
   79  communication is not subject to interception under circumstances
   80  justifying such expectation, including the use of a microphone
   81  enabled household device, and does not mean any public oral
   82  communication uttered at a public meeting or any electronic
   83  communication.
   84         (27)“Microphone-enabled household device” means a device,
   85  sensor, or other physical object within a residence:
   86         (a)Capable of connecting to the Internet, directly or
   87  indirectly, or to another connected device;
   88         (b)Capable of creating, receiving, accessing, processing,
   89  or storing electronic data or communications;
   90         (c)That communicates with, by any means, another entity or
   91  individual; and
   92         (d)That contains a microphone designed to listen for and
   93  respond to environmental cues.
   94         (28)“Portable electronic communication device” means an
   95  object capable of being easily transported or conveyed by a
   96  person which is capable of creating, receiving, accessing, or
   97  storing electronic data or communications and that communicates
   98  with, by any means, another device, entity, or individual.
   99         Section 3. Section 934.21, Florida Statutes, is amended to
  100  read:
  101         934.21 Unlawful access to stored communications;
  102  penalties.—
  103         (1) Except as provided in subsection (4)(3), whoever:
  104         (a) Intentionally accesses without authorization a facility
  105  through which an electronic communication service is provided,
  106  or
  107         (b) Intentionally exceeds an authorization to access such
  108  facility,
  110  and thereby obtains, alters, or prevents authorized access to a
  111  wire or electronic communication while it is in electronic
  112  storage in such system shall be punished as provided in
  113  subsection (3)(2).
  114         (2)Except as provided in subsection (4), whoever
  115  intentionally and unlawfully accesses without authorization a
  116  cellular phone, portable electronic communication device, or
  117  microphone-enabled household device and thereby obtains wire,
  118  oral, or electronic communications stored within the cellular
  119  phone, portable electronic communication device, or microphone
  120  enabled household device shall be punished as provided in
  121  subsection (3).
  122         (3)(2) The punishment for an offense under subsection (1)
  123  or subsection (2) is as follows:
  124         (a) If the offense is committed for purposes of commercial
  125  advantage, malicious destruction or damage, or private
  126  commercial gain, the person is:
  127         1. In the case of a first offense under this subsection,
  128  commits guilty of a misdemeanor of the first degree, punishable
  129  as provided in s. 775.082, s. 775.083, or s. 934.41.
  130         2. In the case of any subsequent offense under this
  131  subsection, commits guilty of a felony of the third degree,
  132  punishable as provided in s. 775.082, s. 775.083, s. 775.084, or
  133  s. 934.41.
  134         (b) In any other case, the person commits is guilty of a
  135  misdemeanor of the second degree, punishable as provided in s.
  136  775.082 or s. 775.083.
  137         (4)(3)Subsections subsection (1) and (2) do does not apply
  138  with respect to conduct authorized:
  139         (a) By the person or entity providing a wire, oral, or
  140  electronic communications service, including through cellular
  141  phones, portable electronic communication devices, or
  142  microphone-enabled household devices;
  143         (b) By a user of a wire, oral, or electronic communications
  144  service, including through cellular phones, portable electronic
  145  communication devices, or microphone-enabled household devices,
  146  with respect to a communication of or intended for that user; or
  147         (c) In s. 934.09, s. 934.23, or s. 934.24; or
  148         (d) For accessing for a legitimate business purpose
  149  information that is not personally identifiable or that has been
  150  collected in a way that prevents identification of the user of
  151  the device.
  152         Section 4. Section 934.42, Florida Statutes, is amended to
  153  read:
  154         934.42 Mobile tracking device and location tracking
  155  authorization.—
  156         (1) An investigative or law enforcement officer may make
  157  application to a judge of competent jurisdiction for a warrant
  158  an order authorizing or approving the installation and use of a
  159  mobile tracking device or the acquisition of cellular-site
  160  location data, precise global positioning satellite location
  161  data, or historical global positioning satellite location data.
  162         (2) An application under subsection (1) of this section
  163  must include:
  164         (a) A statement of the identity of the applicant and the
  165  identity of the law enforcement agency conducting the
  166  investigation.
  167         (b) A statement setting forth a reasonable period of time
  168  that the device may be used or the location data may be
  169  obtained. The time must not exceed 45 days from the date the
  170  warrant was issued. The court may, for good cause, grant one or
  171  more extensions for a reasonable period of time not to exceed 45
  172  days each certification by the applicant that the information
  173  likely to be obtained is relevant to an ongoing criminal
  174  investigation being conducted by the investigating agency.
  175         (c) A statement of the offense to which the information
  176  likely to be obtained relates.
  177         (d) A statement whether it may be necessary to use and
  178  monitor the mobile tracking device outside the jurisdiction of
  179  the court from which authorization is being sought.
  180         (3) Upon application made as provided under subsection (2),
  181  the court, if it finds probable cause, that the certification
  182  and the statements required by subsection (2) have been made in
  183  the application, shall grant a warrant enter an ex parte order
  184  authorizing the installation and use of a mobile tracking
  185  device. Such warrant order may authorize the use of the device
  186  within the jurisdiction of the court and outside that
  187  jurisdiction but within the State of Florida if the device is
  188  installed within the jurisdiction of the court. The warrant must
  189  command the officer to complete any installation authorized by
  190  the warrant within a specified period of time not to exceed 10
  191  calendar days.
  192         (4) A court may not require greater specificity or
  193  additional information beyond that which is required by law and
  194  this section as a requisite for issuing a warrant an order.
  195         (5)Within 10 days after the time period specified in
  196  paragraph (2)(b) has ended, the officer executing a warrant must
  197  return the warrant to the issuing judge. The officer may do so
  198  by reliable electronic means.
  199         (6)Within 10 days after the time period specified in
  200  paragraph (2)(b) has ended, the officer executing a warrant must
  201  serve a copy of the warrant on the person who, or whose
  202  property, was tracked. Service may be accomplished by delivering
  203  a copy to the person who, or whose property, was tracked or by
  204  leaving a copy at the person’s residence or usual place of abode
  205  with an individual of suitable age and discretion who resides at
  206  that location and by mailing a copy to the person’s last known
  207  address. Upon request of the law enforcement agency, the court
  208  may delay notice for a period of 90 days as provided in s.
  209  934.25.
  210         (7)(5) The standards established by Florida courts and the
  211  United States Supreme Court for the installation, use, or and
  212  monitoring of mobile tracking devices shall apply to the
  213  installation, use, or monitoring and use of any device as
  214  authorized by this section.
  215         (8)(6) As used in this section, the term “mobile tracking
  216  device” or a “tracking device” means an electronic or mechanical
  217  device, including a cellular phone or a portable electronic
  218  communication device, which permits the tracking of the movement
  219  of a person or object and may be used to access cellular-site
  220  location data, precise global positioning satellite location
  221  data, or historical global positioning satellite location data.
  222         (9)(a)Notwithstanding any other provision of this chapter,
  223  any investigative or law enforcement officer specially
  224  designated by the Governor, the Attorney General, the statewide
  225  prosecutor, or a state attorney acting pursuant to this chapter
  226  who reasonably determines that:
  227         1.An emergency exists which:
  228         a.Involves immediate danger of death or serious physical
  229  injury to any person or the danger of escape of a prisoner; and
  230         b.Requires the installation or use of a mobile tracking
  231  device before a warrant authorizing such installation or use
  232  can, with due diligence, be obtained; and
  233         2.There are grounds upon which a warrant could be issued
  234  under this chapter to authorize such installation or use,
  236  may install or use a mobile tracking device if, within 48 hours
  237  after the installation or use has occurred or begins to occur, a
  238  warrant approving the installation or use is issued in
  239  accordance with this section.
  240         (b)In the absence of an authorizing warrant, such
  241  installation or use shall immediately terminate when the
  242  information sought is obtained, when the application for the
  243  warrant is denied, or when 48 hours have lapsed since the
  244  installation or use of the mobile tracking device began,
  245  whichever is earlier.
  246         (c)The knowing installation or use by any investigative or
  247  law enforcement officer of a mobile tracking device pursuant to
  248  paragraph (a) without application for the authorizing warrant
  249  within 48 hours after the installation or use begins constitutes
  250  a violation of this section.
  251         Section 5. This act shall take effect July 1, 2018.
  253  ================= T I T L E  A M E N D M E N T ================
  254  And the title is amended as follows:
  255         Delete everything before the enacting clause
  256  and insert:
  257                        A bill to be entitled                      
  258         An act relating to the search of the content,
  259         information, and communications of cellular phones,
  260         portable electronic communication devices, and
  261         microphone-enabled household devices; amending s.
  262         934.01, F.S.; providing legislative findings; amending
  263         s. 934.02, F.S.; providing definitions; amending s.
  264         934.21, F.S.; conforming provisions to changes made by
  265         the act; prohibiting unlawful access to communications
  266         stored in specified devices; providing penalties;
  267         amending s. 934.42, F.S.; requiring that law
  268         enforcement obtain a warrant to acquire certain
  269         location information; providing procedures for such
  270         warrants; providing limited exceptions in certain
  271         circumstances; providing an effective date.