Florida Senate - 2018                             CS for SB 1256
       By the Committee on Criminal Justice; and Senator Brandes
       591-02899-18                                          20181256c1
    1                        A bill to be entitled                      
    2         An act relating to the search of the content,
    3         information, and communications of cellular phones,
    4         portable electronic communication devices, and
    5         microphone-enabled household devices; amending s.
    6         934.01, F.S.; revising and providing legislative
    7         findings; amending s. 934.02, F.S.; redefining the
    8         term “oral communication”; defining the terms
    9         “microphone-enabled household device” and “portable
   10         electronic communication device”; amending s. 934.21,
   11         F.S.; providing criminal penalties for the intentional
   12         and unlawful accessing without authorization of
   13         certain devices and obtaining wire, oral, or
   14         electronic communications stored within those devices;
   15         conforming cross-references; amending s. 934.42, F.S.;
   16         authorizing an investigative or law enforcement
   17         officer to apply to a judge of competent jurisdiction
   18         for a warrant, rather than an order, authorizing the
   19         acquisition of cellular-site location data, precise
   20         global positioning satellite location data, or
   21         historical global positioning satellite location data;
   22         requiring an application for a warrant to include a
   23         statement of a reasonable period of time that a mobile
   24         tracking device may be used, not to exceed a specified
   25         limit; authorizing a court to grant extensions not
   26         individually exceeding a specified limit, for good
   27         cause; deleting a provision requiring a certification
   28         to be included in the application for an order;
   29         requiring the warrant to command the officer to
   30         complete an installation authorized by the warrant
   31         within a certain timeframe; providing requirements for
   32         the return of the warrant to the judge and service of
   33         a copy of the warrant on the person who was tracked or
   34         whose property was tracked; authorizing a court to
   35         delay the notice requirement for a certain time upon
   36         request by the law enforcement agency; requiring that
   37         the standards established by Florida courts for the
   38         installation, use, or monitoring of mobile tracking
   39         devices apply to the installation, use, or monitoring
   40         of certain devices; redefining the term “tracking
   41         device”; authorizing any investigative or law
   42         enforcement officer who is specially designated by
   43         certain persons and who makes specified determinations
   44         to install or use a mobile tracking device under
   45         certain circumstances; providing requirements for the
   46         installation and use of the mobile tracking devices;
   47         providing criminal penalties; providing an effective
   48         date.
   50  Be It Enacted by the Legislature of the State of Florida:
   52         Section 1. Section 934.01, Florida Statutes, is amended to
   53  read:
   54         934.01 Legislative findings.—On the basis of its own
   55  investigations and of published studies, the Legislature makes
   56  the following findings:
   57         (1) Wire communications are normally conducted through the
   58  use of facilities which form part of an intrastate network. The
   59  same facilities are used for interstate and intrastate
   60  communications.
   61         (2) In order to protect effectively the privacy of wire,
   62  and oral, and electronic communications, to protect the
   63  integrity of court and administrative proceedings, and to
   64  prevent the obstruction of intrastate commerce, it is necessary
   65  for the Legislature to define the circumstances and conditions
   66  under which the interception of wire, and oral, and electronic
   67  communications may be authorized and to prohibit any
   68  unauthorized interception of such communications and the use of
   69  the contents thereof in evidence in courts and administrative
   70  proceedings.
   71         (3) Organized criminals make extensive use of wire, and
   72  oral, and electronic communications in their criminal
   73  activities. The interception of such communications to obtain
   74  evidence of the commission of crimes or to prevent their
   75  commission is an indispensable aid to law enforcement and the
   76  administration of justice.
   77         (4) To safeguard the privacy of innocent persons, the
   78  interception of wire, or oral, or electronic communications when
   79  none of the parties to the communication has consented to the
   80  interception should be allowed only when authorized by a court
   81  of competent jurisdiction and should remain under the control
   82  and supervision of the authorizing court. Interception of wire,
   83  and oral, and electronic communications should further be
   84  limited to certain major types of offenses and specific
   85  categories of crime with assurance that the interception is
   86  justified and that the information obtained thereby will not be
   87  misused.
   88         (5)To safeguard the privacy of innocent persons, the
   89  Legislature recognizes that the subjective expectation of
   90  privacy in precision location data that society is now prepared
   91  to accept is objectively reasonable. As such, the law
   92  enforcement collection of the precise location of a person,
   93  cellular phone, or portable electronic communication device
   94  without the consent of the person or owner of the cellular phone
   95  or portable electronic communication device should be allowed
   96  only when authorized by a warrant issued by a court of competent
   97  jurisdiction and should remain under the control and supervision
   98  of the authorizing court.
   99         (6)The Legislature recognizes that the use of portable
  100  electronic communication devices is growing at a rapidly
  101  increasing rate. These devices can store, and encourage the
  102  storing of, an almost limitless amount of personal and private
  103  information. Often linked to the Internet, these devices are
  104  commonly used to access personal and business information and
  105  databases in computers and servers that can be located anywhere
  106  in the world. The user of a portable electronic communication
  107  device has a reasonable and justifiable expectation of privacy
  108  in the information that these devices contain.
  109         (7)The Legislature recognizes that the use of household
  110  electronic devices, including microphone-enabled household
  111  devices, is growing at a rapidly increasing rate. These devices
  112  often contain microphones that listen for and respond to
  113  environmental triggers. These household devices are generally
  114  connected to and communicate through the Internet, resulting in
  115  the storage of and accessibility to daily household information
  116  in a device itself or in a remote computing service. Persons
  117  should not have to choose between using household technological
  118  enhancements and conveniences or preserving the right to privacy
  119  in one’s home.
  120         Section 2. Subsection (2) of section 934.02, Florida
  121  Statutes, is amended, and subsections (27) and (28) are added to
  122  that section, to read:
  123         934.02 Definitions.—As used in this chapter:
  124         (2) “Oral communication” means any oral communication
  125  uttered by a person exhibiting an expectation that such
  126  communication is not subject to interception under circumstances
  127  justifying such expectation, including the use of a microphone
  128  enabled household device, and does not mean any public oral
  129  communication uttered at a public meeting or any electronic
  130  communication.
  131         (27)“Microphone-enabled household device” means a device,
  132  sensor, or other physical object within a residence:
  133         (a)Capable of connecting to the Internet, directly or
  134  indirectly, or to another connected device;
  135         (b)Capable of creating, receiving, accessing, processing,
  136  or storing electronic data or communications;
  137         (c)Which communicates with, by any means, another entity
  138  or individual; and
  139         (d)Which contains a microphone designed to listen for and
  140  respond to environmental cues.
  141         (28)“Portable electronic communication device” means an
  142  object capable of being easily transported or conveyed by a
  143  person which is capable of creating, receiving, accessing, or
  144  storing electronic data or communications and which communicates
  145  with, by any means, another device, entity, or individual.
  146         Section 3. Section 934.21, Florida Statutes, is amended to
  147  read:
  148         934.21 Unlawful access to stored communications;
  149  penalties.—
  150         (1) Except as provided in subsection (4) (3), whoever:
  151         (a) Intentionally accesses without authorization a facility
  152  through which an electronic communication service is provided,
  153  or
  154         (b) Intentionally exceeds an authorization to access such
  155  facility,
  157  and thereby obtains, alters, or prevents authorized access to a
  158  wire or electronic communication while it is in electronic
  159  storage in such system shall be punished as provided in
  160  subsection (3) (2).
  161         (2)Except as provided in subsection (4), whoever
  162  intentionally and unlawfully accesses without authorization a
  163  cellular phone, portable electronic communication device, or
  164  microphone-enabled household device and thereby obtains wire,
  165  oral, or electronic communications stored within the cellular
  166  phone, portable electronic communication device, or microphone
  167  enabled household device shall be punished as provided in
  168  subsection (3).
  169         (3)(2) The punishment for an offense under subsection (1)
  170  or subsection (2) is as follows:
  171         (a) If the offense is committed for purposes of commercial
  172  advantage, malicious destruction or damage, or private
  173  commercial gain, the person is:
  174         1. In the case of a first offense under this subsection,
  175  commits guilty of a misdemeanor of the first degree, punishable
  176  as provided in s. 775.082, s. 775.083, or s. 934.41.
  177         2. In the case of any subsequent offense under this
  178  subsection, commits guilty of a felony of the third degree,
  179  punishable as provided in s. 775.082, s. 775.083, s. 775.084, or
  180  s. 934.41.
  181         (b) In any other case, the person commits is guilty of a
  182  misdemeanor of the second degree, punishable as provided in s.
  183  775.082 or s. 775.083.
  184         (4)(3)Subsections subsection (1) and (2) do does not apply
  185  with respect to conduct authorized:
  186         (a) By the person or entity providing a wire, oral, or
  187  electronic communications service, including through cellular
  188  phones, portable electronic communication devices, or
  189  microphone-enabled household devices;
  190         (b) By a user of a wire, oral, or electronic communications
  191  service, including through cellular phones, portable electronic
  192  communication devices, or microphone-enabled household devices,
  193  with respect to a communication of or intended for that user; or
  194         (c) In s. 934.09, s. 934.23, or s. 934.24; or
  195         (d) For accessing for a legitimate business purpose
  196  information that is not personally identifiable or that has been
  197  collected in a way that prevents identification of the user of
  198  the device.
  199         Section 4. Section 934.42, Florida Statutes, is amended to
  200  read:
  201         934.42 Mobile tracking device and location tracking
  202  authorization.—
  203         (1) An investigative or law enforcement officer may make
  204  application to a judge of competent jurisdiction for a warrant
  205  an order authorizing or approving the installation and use of a
  206  mobile tracking device or the acquisition of cellular-site
  207  location data, precise global positioning satellite location
  208  data, or historical global positioning satellite location data.
  209         (2) An application under subsection (1) of this section
  210  must include:
  211         (a) A statement of the identity of the applicant and the
  212  identity of the law enforcement agency conducting the
  213  investigation.
  214         (b) A statement setting forth a reasonable period of time
  215  that the device may be used or the location data may be
  216  obtained. The time must not exceed 45 days from the date the
  217  warrant is issued. The court may, for good cause, grant one or
  218  more extensions for a reasonable period of time, not to exceed
  219  45 days each certification by the applicant that the information
  220  likely to be obtained is relevant to an ongoing criminal
  221  investigation being conducted by the investigating agency.
  222         (c) A statement of the offense to which the information
  223  likely to be obtained relates.
  224         (d) A statement whether it may be necessary to use and
  225  monitor the mobile tracking device outside the jurisdiction of
  226  the court from which authorization is being sought.
  227         (3) Upon application made as provided under subsection (2),
  228  the court, if it finds probable cause, that the certification
  229  and that the statements required by subsection (2) have been
  230  made in the application, shall grant a warrant enter an ex parte
  231  order authorizing the installation and use of a mobile tracking
  232  device. Such warrant order may authorize the use of the device
  233  within the jurisdiction of the court and outside that
  234  jurisdiction but within the State of Florida if the device is
  235  installed within the jurisdiction of the court. The warrant must
  236  command the officer to complete any installation authorized by
  237  the warrant within a specified period of time not to exceed 10
  238  calendar days.
  239         (4) A court may not require greater specificity or
  240  additional information beyond that which is required by law and
  241  this section as a requisite for issuing a warrant an order.
  242         (5)Within 10 days after the time period specified in
  243  paragraph (2)(b) has ended, the officer executing a warrant must
  244  return the warrant to the issuing judge. The officer may do so
  245  by reliable electronic means.
  246         (6)Within 10 days after the time period specified in
  247  paragraph (2)(b) has ended, the officer executing a warrant must
  248  serve a copy of the warrant on the person who, or whose
  249  property, was tracked. Service may be accomplished by delivering
  250  a copy to the person who, or whose property, was tracked or by
  251  leaving a copy at the person’s residence or usual place of abode
  252  with an individual of suitable age and discretion who resides at
  253  that location and by mailing a copy to the person’s last known
  254  address. Upon request of the law enforcement agency, the court
  255  may delay notice for a period of 90 days as provided in s.
  256  934.25.
  257         (7)(5) The standards established by Florida courts and the
  258  United States Supreme Court for the installation, use, or and
  259  monitoring of mobile tracking devices shall apply to the
  260  installation, use, or monitoring and use of any device as
  261  authorized by this section.
  262         (8)(6) As used in this section, the term “mobile tracking
  263  device” or a “tracking device” means an electronic or mechanical
  264  device, including a cellular phone or a portable electronic
  265  communication device, which permits the tracking of the movement
  266  of a person or object and may be used to access cellular-site
  267  location data, precise global positioning satellite location
  268  data, or historical global positioning satellite location data.
  269         (9)(a)Notwithstanding any other provision of this chapter,
  270  any investigative or law enforcement officer specially
  271  designated by the Governor, the Attorney General, the statewide
  272  prosecutor, or a state attorney acting pursuant to this chapter
  273  who reasonably determines that:
  274         1.An emergency exists which:
  275         a.Involves immediate danger of death or serious physical
  276  injury to any person or the danger of escape of a prisoner; and
  277         b.Requires the installation or use of a mobile tracking
  278  device before a warrant authorizing such installation or use
  279  can, with due diligence, be obtained; and
  280         2.There are grounds upon which a warrant could be issued
  281  under this chapter to authorize such installation or use,
  283  may install or use a mobile tracking device if, within 48 hours
  284  after the installation or use has occurred or begins to occur, a
  285  warrant approving the installation or use is issued in
  286  accordance with this section.
  287         (b)In the absence of an authorizing warrant, such
  288  installation or use shall immediately terminate when the
  289  information sought is obtained, when the application for the
  290  warrant is denied, or when 48 hours have lapsed since the
  291  installation or use of the mobile tracking device began,
  292  whichever is earlier.
  293         (c)The knowing installation or use by any investigative or
  294  law enforcement officer of a mobile tracking device pursuant to
  295  paragraph (a) without application for the authorizing warrant
  296  within 48 hours after the installation or use begins constitutes
  297  a violation of this section.
  298         Section 5. This act shall take effect July 1, 2018.