Florida Senate - 2018 CS for SB 618 By the Committee on Criminal Justice; and Senators Baxley, Steube, Book, Rouson, and Mayfield 591-01942-18 2018618c1 1 A bill to be entitled 2 An act relating to subpoenas in investigations of 3 sexual offenses; creating s. 934.255, F.S.; defining 4 terms; authorizing an investigative or law enforcement 5 officer conducting an investigation into specified 6 matters to subpoena certain persons or entities for 7 the production of records, documents, or other 8 tangible things and testimony; specifying requirements 9 for the issuance of a subpoena; authorizing a 10 subpoenaed person to petition a court for an order 11 modifying or setting aside the subpoena or a 12 prohibition on disclosure; authorizing an 13 investigative or law enforcement officer to retain 14 subpoenaed records, documents, or other tangible 15 objects under certain circumstances; prohibiting the 16 disclosure of a subpoena for a specified period if the 17 disclosure might result in an adverse result; 18 providing exceptions; specifying the acts that 19 constitute an adverse result; requiring the 20 investigative or law enforcement officer to maintain a 21 true copy of a written certification; authorizing a 22 court to grant extension of certain periods under 23 certain circumstances; requiring an investigative or 24 law enforcement officer to serve or deliver a copy of 25 the process along with specified information upon the 26 expiration of a nondisclosure period or delay of 27 notification; authorizing an investigative or law 28 enforcement officer to apply to a court for an order 29 prohibiting certain entities from notifying the 30 existence of a subpoena under certain circumstances; 31 authorizing an investigative or law enforcement 32 officer to petition a court to compel compliance; 33 authorizing a court to punish a person who does not 34 comply with a subpoena as indirect criminal contempt; 35 providing criminal penalties; precluding a cause of 36 action against certain entities or persons for 37 providing information, facilities, or assistance in 38 accordance with terms of a subpoena; providing for 39 preservation of evidence pending issuance of process; 40 providing that certain entities or persons shall be 41 held harmless from any claim and civil liability 42 resulting from disclosure of specified information; 43 providing for reasonable compensation for reasonable 44 expenses incurred in providing assistance; requiring 45 that a subpoenaed witness be paid certain fees and 46 mileage; providing an effective date. 47 48 Be It Enacted by the Legislature of the State of Florida: 49 50 Section 1. Section 934.255, Florida Statutes, is created to 51 read: 52 934.255 Subpoenas in investigations of sexual offenses.— 53 (1) As used in this section, the term: 54 (a) “Child” means a person under 18 years of age. 55 (b) “Deliver” is construed in accordance with completed 56 delivery, as provided for in Rule 1.080(b) of the Florida Rules 57 of Civil Procedure. 58 (c) “Sexual abuse of a child” means a criminal offense 59 based on any conduct described in s. 39.01(71). 60 (d) “Supervisory official” means the person in charge of an 61 investigating or law enforcement agency’s or entity’s 62 headquarters or regional office; the state attorney of the 63 circuit from which the subpoena has been issued; the statewide 64 prosecutor; or an assistant state attorney or assistant 65 statewide prosecutor specifically designated by the state 66 attorney or statewide prosecutor to make such written 67 certification. 68 (2) An investigative or law enforcement officer who is 69 conducting an investigation into: 70 (a) Allegations of the sexual abuse of a child or an 71 individual’s suspected commission of a crime listed in s. 72 943.0435(1)(h)1.a.(I) may use a subpoena to compel the 73 production of records, documents, or other tangible objects and 74 the testimony of the subpoena recipient concerning the 75 production and authenticity of such records, documents, or 76 objects, except as provided in paragraphs (b) and (c). 77 (b) Allegations of the sexual abuse of a child may use a 78 subpoena to require a provider of electronic communication 79 services or remote computing services to disclose a record or 80 other information pertaining to a subscriber or customer of such 81 service as described in 934.23(4)(b), not including the contents 82 of a communication. An investigative or law enforcement officer 83 who receives records or information from a provider of 84 electronic communication services or remote computing services 85 under this paragraph is not required to provide notice to a 86 subscriber or customer of that provider. 87 (c) Allegations of the sexual abuse of a child may use a 88 subpoena to require a provider of remote computing services to 89 disclose the contents of any wire or electronic communication 90 that has been in electronic storage in an electronic 91 communications system for more than 180 days and to which this 92 paragraph is made applicable by paragraph (d), with prior 93 notice, or with delayed notice pursuant to subsection (6), from 94 the investigative or law enforcement officer to the subscriber 95 or customer. 96 (d) Paragraph (c) applies to any electronic communication 97 that is held or maintained on a remote computing service: 98 1. On behalf of a subscriber or customer of such service 99 and received by means of electronic transmission from, or 100 created by means of computer processing of communications 101 received by means of electronic transmission from, a subscriber 102 or customer of such service. 103 2. Solely for the purposes of providing storage or computer 104 processing services to a subscriber or customer, if the provider 105 is not authorized to access the contents of any such 106 communication for purposes of providing any service other than 107 storage or computer processing. 108 109 A subpoena issued under this subsection must describe the 110 records, documents, or other tangible objects required to be 111 produced, and must prescribe a date by which such records, 112 documents, or other tangible objects must be produced. 113 (3) At any time before the date prescribed in the subpoena 114 by which records, documents, or other tangible objects must be 115 produced, a person or entity receiving a subpoena issued 116 pursuant to subsection (2) may, before a judge of competent 117 jurisdiction, petition for an order modifying or setting aside 118 the subpoena or a prohibition of disclosure issued under 119 subsection (5) or subsection (9). 120 (4) An investigative or law enforcement officer who uses a 121 subpoena issued under subsection (2) to obtain any record, 122 document, or other tangible object may retain such items for use 123 in any ongoing criminal investigation or a closed investigation 124 with the intent that the investigation may later be reopened. 125 (5) If a subpoena issued under subsection (2) is served 126 upon a recipient and accompanied by a written certification of a 127 supervisory official that there is reason to believe that 128 notification of the existence of the subpoena may have an 129 adverse result, as described in subsection (7), the subpoena 130 recipient is prohibited from disclosing to any person for a 131 period of 180 days the existence of the subpoena. 132 (a) A recipient of a subpoena issued under subsection (2) 133 that is accompanied by a written certification issued pursuant 134 to this subsection is authorized to disclose information 135 otherwise subject to any applicable nondisclosure requirement to 136 persons as is necessary to comply with the subpoena, to an 137 attorney in order to obtain legal advice or assistance regarding 138 compliance with the subpoena, or to any other person as allowed 139 and specifically authorized by the investigative or law 140 enforcement officer who obtained the subpoena or the supervisory 141 official who issued the written certification. The subpoena 142 recipient shall notify any person to whom disclosure of the 143 subpoena is made pursuant to this paragraph of the existence of, 144 and length of time associated with, the nondisclosure 145 requirement. 146 (b) A person to whom disclosure of the subpoena is made 147 under paragraph (a) is subject to the nondisclosure requirements 148 of this subsection in the same manner as the subpoena recipient. 149 (c) At the request of the investigative or law enforcement 150 officer who obtained the subpoena or the supervisory official 151 who issued the written certification, the subpoena recipient 152 shall identify to the investigative or law enforcement officer 153 or supervisory official, before or at the time of compliance 154 with the subpoena, the name of any person to whom disclosure was 155 made under paragraph (a). If the investigative or law 156 enforcement officer or supervisory official makes such a 157 request, the subpoena recipient has an ongoing duty to disclose 158 the identity of any individuals notified of the subpoena’s 159 existence throughout the nondisclosure period. 160 (6) An investigative or law enforcement officer who obtains 161 a subpoena pursuant to paragraph (2)(c) may delay the 162 notification required under that paragraph for a period not to 163 exceed 180 days upon the execution of a written certification of 164 a supervisory official that there is reason to believe that that 165 notification of the existence of the subpoena may have an 166 adverse result described in subsection (7). 167 (7) Any of the following acts by a subpoena recipient 168 constitute an adverse result: 169 (a) Endangering the life or physical safety of an 170 individual. 171 (b) Fleeing from prosecution. 172 (c) Destroying or tampering with evidence. 173 (d) Intimidating potential witnesses. 174 (e) Seriously jeopardizing an investigation or unduly 175 delaying a trial. 176 (8) The investigative or law enforcement officer shall 177 maintain a true copy of a written certification obtained under 178 subsection (5) or subsection (6). 179 (9) The court may grant extensions of the nondisclosure 180 period provided in subsection (5) or the delay of notification 181 provided in subsection (6) of up to 90 days each upon 182 application by an investigative or law enforcement officer, but 183 only in accordance with subsection (11). 184 (10) Upon the expiration of the period of delay of 185 notification in subsection (6) or subsection (9), an 186 investigative or law enforcement officer who receives records or 187 information pursuant to a subpoena issued under paragraph (2)(c) 188 must serve upon or deliver by registered or first-class mail to 189 the subscriber or customer a copy of the process or request, 190 together with notice that: 191 (a) States with reasonable specificity the nature of the 192 law enforcement inquiry; and 193 (b) Informs the subscriber or customer of all of the 194 following: 195 1. That information maintained for such subscriber or 196 customer by the service provider named in the process or request 197 was supplied to or requested by the investigative or law 198 enforcement officer and the date on which such information was 199 so supplied or requested. 200 2. That notification of such subscriber or customer was 201 delayed. 202 3. What investigative or law enforcement officer or what 203 court made the written certification or determination pursuant 204 to which that delay was made. 205 4. Which provision of ss. 934.21-934.28 allowed such a 206 delay. 207 (11) An investigative or law enforcement officer acting 208 under paragraph (2)(b), when not required to notify the 209 subscriber or customer, or to the extent that such notice may be 210 delayed pursuant to subsection (6), may apply to a court for an 211 order prohibiting a provider of electronic communication 212 services or remote computing services to whom the subpoena is 213 directed, for such period as the court deems appropriate, from 214 notifying any other person of the existence of such subpoena 215 except as specifically authorized in subsection (5). The court 216 shall enter such order if it determines that there is reason to 217 believe that notification of the existence of the subpoena will 218 result in an adverse result, as specified under subsection (7). 219 (12) In the case of contumacy by a person served a subpoena 220 issued under subsection (2), or his or her refusal to comply 221 with such a subpoena, the investigative or law enforcement 222 officer who sought the subpoena may petition a court of 223 competent jurisdiction to compel compliance. The court may 224 address the matter as indirect criminal contempt pursuant to 225 Rule 3.840 of the Florida Rules of Criminal Procedure. Any 226 prohibited disclosure of a subpoena issued under subsection (2) 227 for which a period of prohibition of disclosure provided in 228 subsection (5), a delay of notification in subsection (6), or an 229 extension thereof under subsection (9) is in effect is 230 punishable as provided in s. 934.43. 231 (13) No cause of action shall lie in any court against any 232 provider of wire or electronic communication service, its 233 officers, employees, agents, or other specified persons for 234 providing information, facilities, or assistance in accordance 235 with the terms of a subpoena under this section. 236 (14)(a) A provider of wire or electronic communication 237 services or a remote computing service, upon the request of an 238 investigative or law enforcement officer, shall take all 239 necessary steps to preserve records and other evidence in its 240 possession pending the issuance of a court order or other 241 process. 242 (b) Records referred to in paragraph (a) shall be retained 243 for a period of 90 days, which shall be extended for an 244 additional 90 days upon a renewed request by an investigative or 245 law enforcement officer. 246 (15) A provider of electronic communication service, a 247 remote computing service, or any other person who furnished 248 assistance pursuant to this section shall be held harmless from 249 any claim and civil liability resulting from the disclosure of 250 information pursuant to this section and shall be reasonably 251 compensated for reasonable expenses incurred in providing such 252 assistance. A witness who is subpoenaed to appear to testify 253 under subsection (2) and who complies with the subpoena must be 254 paid the same fees and mileage rate paid to a witness appearing 255 before a court of competent jurisdiction in this state. 256 Section 2. This act shall take effect October 1, 2018.