Bill Text: FL S1256 | 2018 | Regular Session | Engrossed
Bill Title: Search of the Content, Information, and Communications of Cellular Phones, Portable Electronic Communication Devices, and Microphone-enabled Household Devices
Spectrum: Slight Partisan Bill (? 3-1)
Status: (Failed) 2018-03-10 - Died in Messages [S1256 Detail]
Download: Florida-2018-S1256-Engrossed.html
CS for CS for CS for SB 1256 First Engrossed 20181256e1 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 constitute unlawful access to stored communications; 13 conforming a provision to changes made by the act; 14 amending s. 934.42, F.S.; defining the terms “mobile 15 tracking device,” “real-time location tracking,” and 16 “historical location data”; authorizing an 17 investigative or law enforcement officer to apply to a 18 judge of competent jurisdiction for a warrant, rather 19 than an order, authorizing real-time location tracking 20 or acquisition of historical location data; requiring 21 an application for a warrant to include a statement of 22 a reasonable period of time that the mobile tracking 23 device may be used or the location data may be 24 obtained in real-time, not to exceed a specified 25 limit; authorizing a court to grant extensions that do 26 not individually exceed a specified limit, for good 27 cause; deleting a provision requiring a certification 28 to be included in the application; providing that the 29 court, if it finds probable cause and finds the 30 required statements in the application, must grant a 31 warrant; specifying the warrant may authorize real 32 time location tracking or acquisition of historical 33 location data; providing the warrant may authorize the 34 use of the mobile tracking device as specified; 35 requiring the warrant to command the officer to 36 complete any installation authorized by the warrant 37 within a certain timeframe; providing requirements for 38 the return of the warrant to the judge and service of 39 a copy of the warrant on the person who was tracked or 40 whose property was tracked; specifying how a warrant 41 authorizing historical location data must be returned 42 and served; authorizing a court, for good cause, to 43 postpone the notice requirement for a specified time 44 period; deleting the definition of “tracking device”; 45 requiring that the standards established by Florida 46 courts for the installation, use, or monitoring of 47 mobile tracking devices and the acquisition of 48 location data apply to the installation, use, or 49 monitoring of any devices and the acquisition of 50 location data as authorized; authorizing any 51 investigative or law enforcement officer who is 52 specially designated by certain persons and who makes 53 specified determinations to engage in real-time 54 location tracking if a warrant is later obtained as 55 specified; provides requirements for engaging in real 56 time location tracking; specifying when real-time 57 location tracking must terminate; providing an 58 effective date. 59 60 Be It Enacted by the Legislature of the State of Florida: 61 62 Section 1. Section 934.01, Florida Statutes, is amended to 63 read: 64 934.01 Legislative findings.—On the basis of its own 65 investigations and of published studies, the Legislature makes 66 the following findings: 67 (1) Wire communications are normally conducted through the 68 use of facilities which form part of an intrastate network. The 69 same facilities are used for interstate and intrastate 70 communications. 71 (2) In order to protect effectively the privacy of wire, 72andoral, and electronic communications, to protect the 73 integrity of court and administrative proceedings, and to 74 prevent the obstruction of intrastate commerce, it is necessary 75 for the Legislature to define the circumstances and conditions 76 under which the interception of wire,andoral, and electronic 77 communications may be authorized and to prohibit any 78 unauthorized interception of such communications and the use of 79 the contents thereof in evidence in courts and administrative 80 proceedings. 81 (3) Organized criminals make extensive use of wire,and82 oral, and electronic communications in their criminal 83 activities. The interception of such communications to obtain 84 evidence of the commission of crimes or to prevent their 85 commission is an indispensable aid to law enforcement and the 86 administration of justice. 87 (4) To safeguard the privacy of innocent persons, the 88 interception of wire,ororal, or electronic communications when 89 none of the parties to the communication has consented to the 90 interception should be allowed only when authorized by a court 91 of competent jurisdiction and should remain under the control 92 and supervision of the authorizing court. Interception of wire, 93andoral, and electronic communications should further be 94 limited to certain major types of offenses and specific 95 categories of crime with assurance that the interception is 96 justified and that the information obtained thereby will not be 97 misused. 98 (5) To safeguard the privacy of innocent persons, the 99 Legislature recognizes that the subjective expectation of 100 privacy in real-time cell-site location data, real-time precise 101 global positioning system location data, and historical precise 102 global positioning system location data that society is now 103 prepared to accept is objectively reasonable. As such, the law 104 enforcement collection of the precise location of a person, 105 cellular phone, or portable electronic communication device 106 without the consent of the person or owner of the cellular phone 107 or portable electronic communication device should be allowed 108 only when authorized by a warrant issued by a court of competent 109 jurisdiction and should remain under the control and supervision 110 of the authorizing court. 111 (6) The Legislature recognizes that the use of portable 112 electronic communication devices is growing at a rapidly 113 increasing rate. These devices can store, and encourage the 114 storing of, an almost limitless amount of personal and private 115 information. Often linked to the Internet, these devices are 116 commonly used to access personal and business information and 117 databases in computers and servers that can be located anywhere 118 in the world. The user of a portable electronic communication 119 device has a reasonable and justifiable expectation of privacy 120 in the information that these devices contain. 121 (7) The Legislature recognizes that the use of household 122 electronic devices, including microphone-enabled household 123 devices, is growing at a rapidly increasing rate. These devices 124 often contain microphones that listen for and respond to 125 environmental cues. These household devices are generally 126 connected to and communicate through the Internet, resulting in 127 the storage of and accessibility to daily household information 128 in a device itself or in a remote computing service. Persons 129 should not have to choose between using household technological 130 enhancements and conveniences or preserving the right to privacy 131 in one’s home. 132 Section 2. Subsection (2) of section 934.02, Florida 133 Statutes, is amended, and subsections (27) and (28) are added to 134 that section, to read: 135 934.02 Definitions.—As used in this chapter: 136 (2) “Oral communication” means any oral communication 137 uttered by a person exhibiting an expectation that such 138 communication is not subject to interception under circumstances 139 justifying such expectation, including the use of a microphone 140 enabled household device, and does not mean any public oral 141 communication uttered at a public meeting or any electronic 142 communication. 143 (27) “Microphone-enabled household device” means a device, 144 sensor, or other physical object within a residence: 145 (a) Capable of connecting to the Internet, directly or 146 indirectly, or to another connected device; 147 (b) Capable of creating, receiving, accessing, processing, 148 or storing electronic data or communications; 149 (c) Which communicates with, by any means, another entity 150 or individual; and 151 (d) Which contains a microphone designed to listen for and 152 respond to environmental cues. 153 (28) “Portable electronic communication device” means an 154 object capable of being easily transported or conveyed by a 155 person which is capable of creating, receiving, accessing, or 156 storing electronic data or communications and which communicates 157 with, by any means, another device, entity, or individual. 158 Section 3. Section 934.21, Florida Statutes, is amended to 159 read: 160 934.21 Unlawful access to stored communications; 161 penalties.— 162 (1) Except as provided in subsection (3), whoever: 163 (a) Intentionally accesses without authorization a facility 164 through which an electronic communication service is provided, 165 or 166 (b) Intentionally exceeds an authorization to access such 167 facility, 168 169 and thereby obtains, alters, or prevents authorized access to a 170 wire or electronic communication while it is in electronic 171 storage in such system shall be punished as provided in 172 subsection (2). 173 (2) The punishment for an offense under subsection (1) is 174 as follows: 175 (a) If the offense is committed for purposes of commercial 176 advantage, malicious destruction or damage, or private 177 commercial gain, the personis: 178 1. In the case of a first offense under this subsection, 179 commitsguilty ofa misdemeanor of the first degree, punishable 180 as provided in s. 775.082, s. 775.083, or s. 934.41. 181 2. In the case of any subsequent offense under this 182 subsection, commitsguilty ofa felony of the third degree, 183 punishable as provided in s. 775.082, s. 775.083, s. 775.084, or 184 s. 934.41. 185 (b) In any other case, the person commitsis guilty ofa 186 misdemeanor of the second degree, punishable as provided in s. 187 775.082 or s. 775.083. 188 (3) Subsection (1) does not apply with respect to conduct 189 authorized: 190 (a) By the person or entity providing a wire, oral, or 191 electronic communications service, including through cellular 192 phones, portable electronic communication devices, or 193 microphone-enabled household devices; 194 (b) By a user of a wire, oral, or electronic communications 195 service, including through cellular phones, portable electronic 196 communication devices, or microphone-enabled household devices, 197 with respect to a communication of or intended for that user;or198 (c) In s. 934.09 or,s. 934.23;, or s. 934.24199 (d) In chapter 933; or 200 (e) For accessing for a legitimate business purpose 201 information that is not personally identifiable or that has been 202 collected in a way that prevents identification of the user of 203 the device. 204 Section 4. Section 934.42, Florida Statutes, is amended to 205 read: 206 934.42 Mobile tracking device and location tracking 207 authorization.— 208 (1) As used in this section: 209 (a) “Mobile tracking device” means an electronic or 210 mechanical device which permits the tracking of the movement of 211 a person or object. 212 (b) “Real-time location tracking” means: 213 1. Installation and use of a mobile tracking device on the 214 object to be tracked; 215 2. Acquisition of real-time cell-site location data; or 216 3. Acquisition of real-time precise global positioning 217 system location data. 218 (c) “Historical location data” means the acquisition of 219 historical precise global positioning system location data in 220 the possession of a provider. 221 (2)(1)An investigative or law enforcement officer may make 222 application to a judge of competent jurisdiction for a warrant 223an orderauthorizing or approving real-time location tracking 224the installation and use of a mobile tracking deviceor the 225 acquisition of historical location data in the possession of the 226 provider. 227 (3)(2)An application under subsection (2)(1)of this 228 section must include: 229 (a) A statement of the identity of the applicant and the 230 identity of the law enforcement agency conducting the 231 investigation. 232 (b) A statement setting forth a reasonable period of time 233 that the mobile tracking device may be used or the location data 234 may be obtained in real-time, not to exceed 45 days from the 235 date the warrant is issued. The court may, for good cause, grant 236 one or more extensions for a reasonable period of time, not to 237 exceed 45 days each. When seeking historical location data, the 238 applicant must specify a data range for the data sought 239certification by the applicant that the information likely to be240obtained is relevant to an ongoing criminal investigation being241conducted by the investigating agency. 242 (c) A statement of the offense to which the information 243 likely to be obtained relates. 244 (d) A statement as to whether it may be necessary to use 245 and monitor the mobile tracking device outside the jurisdiction 246 of the court from which authorization is being sought. 247 (4)(3)Upon application made as provided under subsection 248 (3)(2), the court, if it finds probable causethat the249certificationand finds that the statements required by 250 subsection (3)(2)have been made in the application, shall grant 251 a warrantenter anex parteorderauthorizing real-time location 252 trackingthe installation and use of a mobile tracking deviceor 253 the acquisition of historical location data. Such warrantorder254 may authorize the use of the mobile tracking device within the 255 jurisdiction of the court and outside that jurisdiction but 256 within the State of Florida if the mobile tracking device is 257 installed within the jurisdiction of the court. The warrant must 258 command the officer to complete any installation authorized by 259 the warrant within a specified period of time not to exceed 10 260 calendar days. 261 (5)(4)A court may not require greater specificity or 262 additional information beyond that which is required by law and 263 this section as a requisite for issuing a warrantan order. 264 (6) Within 10 days after the time period specified in 265 paragraph (3)(b) has ended, the officer executing a warrant must 266 return the warrant to the issuing judge. When the warrant is 267 authorizing historical location data, the officer executing the 268 warrant must return the warrant to the issuing judge within 10 269 days after receipt of the records. The officer may do so by 270 reliable electronic means. 271 (7) Within 10 days after the time period specified in 272 paragraph (3)(b) has ended, the officer executing a warrant must 273 serve a copy of the warrant on the person who, or whose 274 property, was tracked. When the warrant is authorizing 275 historical location data, the officer executing the warrant must 276 serve a copy of the warrant on the person whose data was 277 obtained within 10 days after receipt of the records. Service 278 may be accomplished by delivering a copy to the person who, or 279 whose property, was tracked or data obtained or by leaving a 280 copy at the person’s residence or usual place of abode with an 281 individual of suitable age and discretion who resides at that 282 location and by mailing a copy to the person’s last known 283 address. Upon a showing of good cause to a court of competent 284 jurisdiction, the court may grant one or more postponements of 285 this notice for a period of 90 days each. 286 (8)(5)The standards established by Florida courts and the 287 United States Supreme Court for the installation, use, orand288 monitoring of mobile tracking devices and the acquisition of 289 location data shall apply to the installation, use, or 290 monitoringand useof any device and the acquisition of location 291 data as authorized by this section. 292(6) As used in this section, a “tracking device” means an293electronic or mechanical device which permits the tracking of294the movement of a person or object.295 (9)(a) Notwithstanding any other provision of this chapter, 296 any investigative or law enforcement officer specially 297 designated by the Governor, the Attorney General, the statewide 298 prosecutor, or a state attorney acting pursuant to this chapter 299 who reasonably determines that: 300 1. An emergency exists which: 301 a. Involves immediate danger of death or serious physical 302 injury to any person or the danger of escape of a prisoner; and 303 b. Requires real-time location tracking before a warrant 304 authorizing such tracking can, with due diligence, be obtained; 305 and 306 2. There are grounds upon which a warrant could be issued 307 under this chapter to authorize such tracking, 308 309 may engage in real-time location tracking if, within 48 hours 310 after the tracking has occurred or begins to occur, a warrant 311 approving the tracking is issued in accordance with this 312 section. 313 (b) In the absence of an authorizing warrant, such tracking 314 must immediately terminate when the information sought is 315 obtained, when the application for the warrant is denied, or 316 when 48 hours have lapsed since the tracking began, whichever is 317 earlier. 318 Section 5. This act shall take effect July 1, 2018.