Florida Senate - 2018                      CS for CS for SB 1256
       By the Committees on Judiciary; and Criminal Justice; and
       Senator Brandes
       590-03194-18                                          20181256c2
    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.; revising the exceptions to conduct that
   12         constitutes unlawful access to stored communications;
   13         amending s. 934.42, F.S.; authorizing an investigative
   14         or law enforcement officer to apply to a judge of
   15         competent jurisdiction for a warrant, rather than an
   16         order, authorizing the acquisition of cellular-site
   17         location data, precise global positioning satellite
   18         location data, or historical global positioning
   19         satellite location data; requiring an application for
   20         a warrant to include a statement of a reasonable
   21         period of time that a mobile tracking device may be
   22         used, not to exceed a specified limit; authorizing a
   23         court to grant extensions that do not individually
   24         exceed a specified limit, for good cause; deleting a
   25         provision requiring a certification to be included in
   26         the application for an order; requiring the warrant to
   27         command the officer to complete an installation
   28         authorized by the warrant within a certain timeframe;
   29         providing requirements for the return of the warrant
   30         to the judge and service of a copy of the warrant on
   31         the person who was tracked or whose property was
   32         tracked; authorizing a court, for good cause, to
   33         postpone the notice requirement for a specified time
   34         period; requiring that the standards established by
   35         Florida courts for the installation, use, or
   36         monitoring of mobile tracking devices apply to the
   37         installation, use, or monitoring of certain devices;
   38         redefining the term “tracking device”; authorizing any
   39         investigative or law enforcement officer who is
   40         specially designated by certain persons and who makes
   41         specified determinations to install or use a mobile
   42         tracking device under certain circumstances; providing
   43         requirements for the installation and use of such
   44         mobile tracking devices; providing an effective date.
   46  Be It Enacted by the Legislature of the State of Florida:
   48         Section 1. Section 934.01, Florida Statutes, is amended to
   49  read:
   50         934.01 Legislative findings.—On the basis of its own
   51  investigations and of published studies, the Legislature makes
   52  the following findings:
   53         (1) Wire communications are normally conducted through the
   54  use of facilities which form part of an intrastate network. The
   55  same facilities are used for interstate and intrastate
   56  communications.
   57         (2) In order to protect effectively the privacy of wire,
   58  and oral, and electronic communications, to protect the
   59  integrity of court and administrative proceedings, and to
   60  prevent the obstruction of intrastate commerce, it is necessary
   61  for the Legislature to define the circumstances and conditions
   62  under which the interception of wire, and oral, and electronic
   63  communications may be authorized and to prohibit any
   64  unauthorized interception of such communications and the use of
   65  the contents thereof in evidence in courts and administrative
   66  proceedings.
   67         (3) Organized criminals make extensive use of wire, and
   68  oral, and electronic communications in their criminal
   69  activities. The interception of such communications to obtain
   70  evidence of the commission of crimes or to prevent their
   71  commission is an indispensable aid to law enforcement and the
   72  administration of justice.
   73         (4) To safeguard the privacy of innocent persons, the
   74  interception of wire, or oral, or electronic communications when
   75  none of the parties to the communication has consented to the
   76  interception should be allowed only when authorized by a court
   77  of competent jurisdiction and should remain under the control
   78  and supervision of the authorizing court. Interception of wire,
   79  and oral, and electronic communications should further be
   80  limited to certain major types of offenses and specific
   81  categories of crime with assurance that the interception is
   82  justified and that the information obtained thereby will not be
   83  misused.
   84         (5)To safeguard the privacy of innocent persons, the
   85  Legislature recognizes that the subjective expectation of
   86  privacy in precision location data that society is now prepared
   87  to accept is objectively reasonable. As such, the law
   88  enforcement collection of the precise location of a person,
   89  cellular phone, or portable electronic communication device
   90  without the consent of the person or owner of the cellular phone
   91  or portable electronic communication device should be allowed
   92  only when authorized by a warrant issued by a court of competent
   93  jurisdiction and should remain under the control and supervision
   94  of the authorizing court.
   95         (6)The Legislature recognizes that the use of portable
   96  electronic communication devices is growing at a rapidly
   97  increasing rate. These devices can store, and encourage the
   98  storing of, an almost limitless amount of personal and private
   99  information. Often linked to the Internet, these devices are
  100  commonly used to access personal and business information and
  101  databases in computers and servers that can be located anywhere
  102  in the world. The user of a portable electronic communication
  103  device has a reasonable and justifiable expectation of privacy
  104  in the information that these devices contain.
  105         (7)The Legislature recognizes that the use of household
  106  electronic devices, including microphone-enabled household
  107  devices, is growing at a rapidly increasing rate. These devices
  108  often contain microphones that listen for and respond to
  109  environmental triggers. These household devices are generally
  110  connected to and communicate through the Internet, resulting in
  111  the storage of and accessibility to daily household information
  112  in a device itself or in a remote computing service. Persons
  113  should not have to choose between using household technological
  114  enhancements and conveniences or preserving the right to privacy
  115  in one’s home.
  116         Section 2. Subsection (2) of section 934.02, Florida
  117  Statutes, is amended, and subsections (27) and (28) are added to
  118  that section, to read:
  119         934.02 Definitions.—As used in this chapter:
  120         (2) “Oral communication” means any oral communication
  121  uttered by a person exhibiting an expectation that such
  122  communication is not subject to interception under circumstances
  123  justifying such expectation, including the use of a microphone
  124  enabled household device, and does not mean any public oral
  125  communication uttered at a public meeting or any electronic
  126  communication.
  127         (27)“Microphone-enabled household device” means a device,
  128  sensor, or other physical object within a residence:
  129         (a)Capable of connecting to the Internet, directly or
  130  indirectly, or to another connected device;
  131         (b)Capable of creating, receiving, accessing, processing,
  132  or storing electronic data or communications;
  133         (c)Which communicates with, by any means, another entity
  134  or individual; and
  135         (d)Which contains a microphone designed to listen for and
  136  respond to environmental cues.
  137         (28)“Portable electronic communication device” means an
  138  object capable of being easily transported or conveyed by a
  139  person which is capable of creating, receiving, accessing, or
  140  storing electronic data or communications and which communicates
  141  with, by any means, another device, entity, or individual.
  142         Section 3. Section 934.21, Florida Statutes, is amended to
  143  read:
  144         934.21 Unlawful access to stored communications;
  145  penalties.—
  146         (1) Except as provided in subsection (3), whoever:
  147         (a) Intentionally accesses without authorization a facility
  148  through which an electronic communication service is provided,
  149  or
  150         (b) Intentionally exceeds an authorization to access such
  151  facility,
  153  and thereby obtains, alters, or prevents authorized access to a
  154  wire or electronic communication while it is in electronic
  155  storage in such system shall be punished as provided in
  156  subsection (2).
  157         (2) The punishment for an offense under subsection (1) is
  158  as follows:
  159         (a) If the offense is committed for purposes of commercial
  160  advantage, malicious destruction or damage, or private
  161  commercial gain, the person is:
  162         1. In the case of a first offense under this subsection,
  163  commits guilty of a misdemeanor of the first degree, punishable
  164  as provided in s. 775.082, s. 775.083, or s. 934.41.
  165         2. In the case of any subsequent offense under this
  166  subsection, commits guilty of a felony of the third degree,
  167  punishable as provided in s. 775.082, s. 775.083, s. 775.084, or
  168  s. 934.41.
  169         (b) In any other case, the person commits is guilty of a
  170  misdemeanor of the second degree, punishable as provided in s.
  171  775.082 or s. 775.083.
  172         (3) Subsection (1) does not apply with respect to conduct
  173  authorized:
  174         (a) By the person or entity providing a wire, oral, or
  175  electronic communications service, including through cellular
  176  phones, portable electronic communication devices, or
  177  microphone-enabled household devices;
  178         (b) By a user of a wire, oral, or electronic communications
  179  service, including through cellular phones, portable electronic
  180  communication devices, or microphone-enabled household devices,
  181  with respect to a communication of or intended for that user; or
  182         (c) In s. 934.09, s. 934.23, or s. 934.24;
  183         (d) In chapter 933; or
  184         (e) For accessing for a legitimate business purpose
  185  information that is not personally identifiable or that has been
  186  collected in a way that prevents identification of the user of
  187  the device.
  188         Section 4. Section 934.42, Florida Statutes, is amended to
  189  read:
  190         934.42 Mobile tracking device and location tracking
  191  authorization.—
  192         (1) An investigative or law enforcement officer may make
  193  application to a judge of competent jurisdiction for a warrant
  194  an order authorizing or approving the installation and use of a
  195  mobile tracking device.
  196         (2) An application under subsection (1) of this section
  197  must include:
  198         (a) A statement of the identity of the applicant and the
  199  identity of the law enforcement agency conducting the
  200  investigation.
  201         (b) A statement setting forth a reasonable period of time
  202  that the tracking device may be used or the location data may be
  203  obtained in real-time, not to exceed 45 days from the date the
  204  warrant is issued. The court may, for good cause, grant one or
  205  more extensions for a reasonable period of time, not to exceed
  206  45 days each certification by the applicant that the information
  207  likely to be obtained is relevant to an ongoing criminal
  208  investigation being conducted by the investigating agency.
  209         (c) A statement of the offense to which the information
  210  likely to be obtained relates.
  211         (d) A statement as to whether it may be necessary to use
  212  and monitor the mobile tracking device outside the jurisdiction
  213  of the court from which authorization is being sought.
  214         (3) Upon application made as provided under subsection (2),
  215  the court, if it finds probable cause, that the certification
  216  and finds that the statements required by subsection (2) have
  217  been made in the application, shall grant a warrant enter an ex
  218  parte order authorizing the installation and use of a mobile
  219  tracking device. Such warrant order may authorize the use of the
  220  device within the jurisdiction of the court and outside that
  221  jurisdiction but within the State of Florida if the device is
  222  installed within the jurisdiction of the court. The warrant must
  223  command the officer to complete any installation authorized by
  224  the warrant within a specified period of time not to exceed 10
  225  calendar days.
  226         (4) A court may not require greater specificity or
  227  additional information beyond that which is required by law and
  228  this section as a requisite for issuing a warrant an order.
  229         (5)Within 10 days after the time period specified in
  230  paragraph (2)(b) has ended, the officer executing a warrant must
  231  return the warrant to the issuing judge. When the warrant is
  232  authorizing historical global positioning satellite location
  233  data, the officer executing the warrant must return the warrant
  234  to the issuing judge within 10 days after receipt of the
  235  records. The officer may do so by reliable electronic means.
  236         (6)Within 10 days after the time period specified in
  237  paragraph (2)(b) has ended, the officer executing a warrant must
  238  serve a copy of the warrant on the person who, or whose
  239  property, was tracked. Service may be accomplished by delivering
  240  a copy to the person who, or whose property, was tracked or by
  241  leaving a copy at the person’s residence or usual place of abode
  242  with an individual of suitable age and discretion who resides at
  243  that location and by mailing a copy to the person’s last known
  244  address. Upon a showing of good cause to a court of competent
  245  jurisdiction, the court may grant one or more postponements of
  246  this notice for a period of 90 days each.
  247         (7)(5) The standards established by Florida courts and the
  248  United States Supreme Court for the installation, use, or and
  249  monitoring of mobile tracking devices shall apply to the
  250  installation, use, or monitoring and use of any device as
  251  authorized by this section.
  252         (8)(6) As used in this section, the term “mobile tracking
  253  device” or a “tracking device” means an electronic or mechanical
  254  device that allows which permits the tracking of the movement of
  255  a person or object, including a cellular phone or a portable
  256  electronic communication device, and may be used to obtain real
  257  time cellular-site location data, precise global positioning
  258  satellite location data, or historical global positioning
  259  satellite location data.
  260         (9)(a)Notwithstanding any other provision of this chapter,
  261  any investigative or law enforcement officer specially
  262  designated by the Governor, the Attorney General, the statewide
  263  prosecutor, or a state attorney acting pursuant to this chapter
  264  who reasonably determines that:
  265         1.An emergency exists which:
  266         a.Involves immediate danger of death or serious physical
  267  injury to any person or the danger of escape of a prisoner; and
  268         b.Requires the installation or use of a mobile tracking
  269  device before a warrant authorizing such installation or use
  270  can, with due diligence, be obtained; and
  271         2.There are grounds upon which a warrant could be issued
  272  under this chapter to authorize such installation or use,
  274  may install or use a mobile tracking device if, within 48 hours
  275  after the installation or use has occurred or begins to occur, a
  276  warrant approving the installation or use is issued in
  277  accordance with this section.
  278         (b)In the absence of an authorizing warrant, such
  279  installation or use must immediately terminate when the
  280  information sought is obtained, when the application for the
  281  warrant is denied, or when 48 hours have lapsed since the
  282  installation or use of the mobile tracking device began,
  283  whichever is earlier.
  284         Section 5. This act shall take effect July 1, 2018.