Bill Text: FL S1256 | 2018 | Regular Session | Comm Sub
NOTE: There are more recent revisions of this legislation. Read Latest Draft
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-Comm_Sub.html
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-Comm_Sub.html
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. 49 50 Be It Enacted by the Legislature of the State of Florida: 51 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, 62andoral, 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,andoral, 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,and72 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,ororal, 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, 83andoral, 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, 156 157 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 personis: 174 1. In the case of a first offense under this subsection, 175 commitsguilty ofa 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, commitsguilty ofa 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 commitsis guilty ofa 182 misdemeanor of the second degree, punishable as provided in s. 183 775.082 or s. 775.083. 184 (4)(3)Subsectionssubsection(1) and (2) dodoesnot 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;or194 (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 205an orderauthorizing 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 section210 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 eachcertification by the applicant that the information220likely to be obtained is relevant to an ongoing criminal221investigation 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 certification229 and that the statements required by subsection (2) have been 230 made in the application, shall grant a warrantenter anex parte 231orderauthorizing the installation and use of a mobile tracking 232 device. Such warrantordermay 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 warrantan 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, orand259 monitoring of mobile tracking devices shall apply to the 260 installation, use, or monitoringand useof any device as 261 authorized by this section. 262 (8)(6)As used in this section, the term “mobile tracking 263 device” ora“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, 282 283 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.