Florida Senate - 2018                        COMMITTEE AMENDMENT
       Bill No. CS for CS for SB 1256
       
       
       
       
       
       
                                Ì743964GÎ743964                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  02/26/2018           .                                
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       The Committee on Rules (Brandes) recommended the following:
       
    1         Senate Substitute for Amendment (654094) (with title
    2  amendment)
    3  
    4         Between lines 187 and 188
    5  insert:
    6         Section 4. Section 934.23, Florida Statutes, is amended to
    7  read:
    8         934.23 Required disclosure of customer communications or
    9  records.—
   10         (1)As used in this section, the term:
   11         (a)“A court of competent jurisdiction” means a court that
   12  has jurisdiction over the investigation or that is otherwise
   13  authorized by law.
   14         (b)“Investigative or law enforcement officer” has the same
   15  meaning as s. 934.02(6), except that in any criminal
   16  investigation, if a law enforcement agency seeks disclosure of
   17  information obtainable by a subpoena under this section, the
   18  agency must request a state attorney, an assistant state
   19  attorney, the statewide prosecutor, or an assistant statewide
   20  prosecutor obtain such subpoena.
   21         (2)(1) An investigative or law enforcement officer may
   22  require the disclosure by a provider of electronic communication
   23  service or remote computing service of the contents of a wire or
   24  electronic communication that is has been in electronic storage
   25  in an electronic communications system or remote computing
   26  system for 180 days or less only pursuant to a warrant issued by
   27  the judge of a court of competent jurisdiction. As used in this
   28  section, the term “a court of competent jurisdiction” means a
   29  court that has jurisdiction over the investigation or that is
   30  otherwise authorized by law. An investigative or law enforcement
   31  officer may require the disclosure by a provider of electronic
   32  communication services of the contents of a wire or electronic
   33  communication that has been in electronic storage in an
   34  electronic communications system for more than 180 days by the
   35  means available under subsection (2).
   36         (2) An investigative or law enforcement officer may require
   37  a provider of remote computing service to disclose the contents
   38  of any wire or electronic communication to which this subsection
   39  is made applicable by subsection (3):
   40         (a) Without required notice to the subscriber or customer
   41  if the investigative or law enforcement officer obtains a
   42  warrant issued by the judge of a court of competent
   43  jurisdiction; or
   44         (b) With prior notice, or with delayed notice pursuant to
   45  s. 934.25, from the investigative or law enforcement officer to
   46  the subscriber or customer if the investigative or law
   47  enforcement officer:
   48         1. Uses a subpoena; or
   49         2. Obtains a court order for such disclosure under
   50  subsection (5).
   51         (3) Subsection (2) is applicable with respect to any
   52  electronic communication that is held or maintained on a remote
   53  computing service:
   54         (a) On behalf of a subscriber or customer of such service
   55  and received by means of electronic transmission from, or
   56  created by means of computer processing of communications
   57  received by means of electronic transmission from, a subscriber
   58  or customer of such service.
   59         (b) Solely for the purposes of providing storage or
   60  computer processing services to a subscriber or customer, if the
   61  provider is not authorized to access the contents of any such
   62  communication for purposes of providing any service other than
   63  storage or computer processing.
   64         (4)(a) An investigative or law enforcement officer may
   65  require a provider of electronic communication service or remote
   66  computing service to disclose a record or other information
   67  pertaining to a subscriber or customer of such service, not
   68  including the contents of a communication, only when the
   69  investigative or law enforcement officer:
   70         1. Obtains a warrant issued by the judge of a court of
   71  competent jurisdiction;
   72         2. Obtains a court order for such disclosure under
   73  subsection (5);
   74         3. Has the consent of the subscriber or customer to such
   75  disclosure; or
   76         4. Seeks information under paragraph (b).
   77         (b) A provider of electronic communication service or
   78  remote computing service shall disclose to an investigative or
   79  law enforcement officer the name; address; local and long
   80  distance telephone connection records, or records of session
   81  times or durations; length of service, including the starting
   82  date of service; types of services used; telephone or instrument
   83  number or other subscriber number or identity, including any
   84  temporarily assigned network address; and means and source of
   85  payment, including any credit card or bank account number of a
   86  subscriber to or customer of such service when the governmental
   87  entity uses a subpoena or obtains such information in the manner
   88  specified in paragraph (a) for obtaining information under that
   89  paragraph.
   90         (c) An investigative or law enforcement officer who
   91  receives records or information under this subsection is not
   92  required to provide notice to a subscriber or customer.
   93         (5) A court order for disclosure under subsection (2),
   94  subsection (3), or subsection (4) shall issue only if the
   95  investigative or law enforcement officer offers specific and
   96  articulable facts showing that there are reasonable grounds to
   97  believe that a record or other information pertaining to a
   98  subscriber or customer of an electronic communication service or
   99  remote computing service the contents of a wire or electronic
  100  communication or the records of other information sought are
  101  relevant and material to an ongoing criminal investigation. A
  102  court issuing an order pursuant to this section, on a motion
  103  made promptly by the service provider, may quash or modify such
  104  order if the information or records requested are unusually
  105  voluminous in nature or compliance with such order otherwise
  106  would cause an undue burden on such provider.
  107         (6) No cause of action shall lie in any court against any
  108  provider of wire or electronic communication service, its
  109  officers, employees, agents, or other specified persons for
  110  providing information, facilities, or assistance in accordance
  111  with the terms of a court order, warrant, subpoena, or
  112  certification under ss. 934.21-934.28.
  113         (7)(a) A provider of wire or electronic communication
  114  services or a remote computing service, upon the request of an
  115  investigative or law enforcement officer, shall take all
  116  necessary steps to preserve records and other evidence in its
  117  possession pending the issuance of a court order or other
  118  process.
  119         (b) Records referred to in paragraph (a) shall be retained
  120  for a period of 90 days, which shall be extended for an
  121  additional 90 days upon a renewed request by an investigative or
  122  law enforcement officer.
  123         (8) A provider of electronic communication service, a
  124  remote computing service, or any other person who furnished
  125  assistance pursuant to this section shall be held harmless from
  126  any claim and civil liability resulting from the disclosure of
  127  information pursuant to this section and shall be reasonably
  128  compensated for reasonable expenses incurred in providing such
  129  assistance.
  130         Section 5. Section 934.24, Florida Statutes is repealed.
  131         Section 6. Section 934.25, Florida Statutes, is amended to
  132  read:
  133         934.25 Nondisclosure by service provider Delayed notice.—
  134         (1) An investigative or law enforcement officer acting
  135  under s. 934.23(2) may:
  136         (a) Where a court order is sought, include in the
  137  application a request for an order delaying the notification
  138  required under s. 934.23(2) for a period not to exceed 90 days,
  139  which request the court shall grant if it determines that there
  140  is reason to believe that notification of the existence of the
  141  court order may have an adverse result described in subsection
  142  (2).
  143         (b) Where a subpoena is obtained, delay the notification
  144  required under s. 934.23(2) for a period not to exceed 90 days
  145  upon the execution of a written certification of a supervisory
  146  official that there is reason to believe that notification of
  147  the existence of the subpoena may have an adverse result
  148  described in subsection (2).
  149         (2) Any of the following acts constitute an adverse result
  150  for purposes of subsection (1):
  151         (a) Endangering the life or physical safety of an
  152  individual.
  153         (b) Fleeing from prosecution.
  154         (c) Destroying or tampering with evidence.
  155         (d) Intimidating potential witnesses.
  156         (e) Seriously jeopardizing an investigation or unduly
  157  delaying a trial.
  158         (3) The investigative or law enforcement officer shall
  159  maintain a true copy of a certification obtained under paragraph
  160  (1)(b).
  161         (4) Extensions of the delay of notification provided in s.
  162  934.23(2) of up to 90 days each may be granted by the court upon
  163  application, or by certification by an investigative or law
  164  enforcement officer, but only in accordance with subsection (6).
  165         (5) Upon the expiration of the period of delay of
  166  notification under subsection (1) or subsection (4), the
  167  investigative or law enforcement officer must serve upon or
  168  deliver by registered or first-class mail to the subscriber or
  169  customer a copy of the process or request together with notice
  170  which:
  171         (a) States with reasonable specificity the nature of the
  172  law enforcement inquiry, and
  173         (b) Informs the subscriber or customer:
  174         1. That information maintained for such subscriber or
  175  customer by the service provider named in the process or request
  176  was supplied to or requested by the investigative or law
  177  enforcement officer and the date on which such information was
  178  so supplied or requested.
  179         2. That notification of such subscriber or customer was
  180  delayed.
  181         3. What investigative or law enforcement officer or what
  182  court made the certification or determination pursuant to which
  183  that delay was made.
  184         4. Which provision of ss. 934.21-934.28 allowed such delay.
  185         (1)(6) An investigative or law enforcement officer acting
  186  under s. 934.23, when not required to notify the subscriber or
  187  customer under s. 934.23(2)(a), or to the extent that such
  188  notice may be delayed pursuant to subsection (1), may apply to a
  189  court for an order commanding a provider of electronic
  190  communication service or remote computing service to whom a
  191  warrant, subpoena, or court order is directed, for such period
  192  as the court deems appropriate, not to notify any other person
  193  of the existence of such warrant, subpoena, or court order. The
  194  court shall enter such order if it determines that there is
  195  reason to believe that notification of the existence of the
  196  warrant, subpoena, or court order will result in an adverse
  197  result. any of the following:
  198         (2)For purposes of this section, an “adverse result” means
  199  any of the following acts:
  200         (a) Endangering the life or physical safety of an
  201  individual.
  202         (b) Fleeing from prosecution.
  203         (c) Destroying or tampering with evidence.
  204         (d) Intimidating potential witnesses.
  205         (e) Seriously jeopardizing an investigation or unduly
  206  delaying a trial.
  207         (7) As used in paragraph (1)(b), the term “supervisory
  208  official” means the person in charge of an investigating or law
  209  enforcement agency’s or entity’s headquarters or regional
  210  office; the state attorney of the circuit from which the subject
  211  subpoena has been issued; the statewide prosecutor; or an
  212  assistant state attorney or assistant statewide prosecutor
  213  specifically designated by the state attorney or statewide
  214  prosecutor to make such written certification.
  215         (8) As used in subsection (5), the term “deliver” shall be
  216  construed in accordance with the definition of “delivery” as
  217  provided in Rule 1.080, Florida Rules of Civil Procedure.
  218         Section 7. Section 934.255, Florida Statutes, is created to
  219  read:
  220         934.255 Subpoenas in investigations of sexual offenses.—
  221         (1) As used in this section, the term:
  222         (a) “Adverse result” means any of the following acts:
  223         1. Endangering the life or physical safety of an
  224  individual.
  225         2. Fleeing from prosecution.
  226         3. Destroying or tampering with evidence.
  227         4. Intimidating potential witnesses.
  228         5. Seriously jeopardizing an investigation or unduly
  229  delaying a trial.
  230         (b) “Child” means a person under 18 years of age.
  231         (c)“Investigative or law enforcement officer” has the same
  232  meaning as s. 934.02(6), except that in any criminal
  233  investigation, if a law enforcement agency seeks disclosure of
  234  information obtainable by a subpoena under this section, the
  235  agency must request a state attorney, an assistant state
  236  attorney, the statewide prosecutor, or an assistant statewide
  237  prosecutor obtain such subpoena.
  238         (d) “Sexual abuse of a child” means a criminal offense
  239  based on any conduct described in s. 39.01(71).
  240         (e) “Supervisory official” means the person in charge of an
  241  investigating or law enforcement agency’s or entity’s
  242  headquarters or regional office; the state attorney of the
  243  circuit from which the subpoena has been issued; the statewide
  244  prosecutor; or an assistant state attorney or assistant
  245  statewide prosecutor specifically designated by the state
  246  attorney or statewide prosecutor to make such written
  247  certification.
  248         (2) An investigative or law enforcement officer who is
  249  conducting an investigation into:
  250         (a) Allegations of the sexual abuse of a child or an
  251  individual’s suspected commission of a crime listed in s.
  252  943.0435(1)(h)1.a.(I) may use a subpoena to compel the
  253  production of records, documents, or other tangible objects and
  254  the testimony of the subpoena recipient concerning the
  255  production and authenticity of such records, documents, or
  256  objects, except as provided in paragraph (b).
  257         (b) Allegations of the sexual abuse of a child may use a
  258  subpoena to require a provider of electronic communication
  259  services or remote computing services to disclose a record or
  260  other information pertaining to a subscriber or customer of such
  261  service as described in s. 934.23(4)(b).
  262         (c) A subpoena issued under paragraph (a) must describe the
  263  records, documents, or other tangible objects required to be
  264  produced, and must prescribe a date by which such records,
  265  documents, or other tangible objects must be produced.
  266         (3) At any time before the date prescribed in a subpoena
  267  issued under subsection (2)(a) for production of records,
  268  documents, or other tangible objects or the date prescribed in a
  269  subpoena issued under subsection (2)(b) for production of a
  270  record or other information, a person or entity receiving such
  271  subpoena may, before a judge of competent jurisdiction, petition
  272  for an order modifying or setting aside the prohibition of
  273  disclosure issued under subsection (5).
  274         (4) An investigative or law enforcement officer who uses a
  275  subpoena issued under paragraph (2)(a) to obtain any record,
  276  document, or other tangible object may retain such items for use
  277  in any ongoing criminal investigation or a closed investigation
  278  with the intent that the investigation may later be reopened.
  279         (5)(a) If a subpoena issued under subsection (2) is served
  280  upon a recipient and accompanied by a written certification of a
  281  supervisory official that there is reason to believe that
  282  notification of the existence of the subpoena may have an
  283  adverse result, the subpoena recipient is prohibited from
  284  disclosing to any person for a period of 180 days the existence
  285  of the subpoena.
  286         (b) A recipient of a subpoena issued under subsection (2)
  287  that is accompanied by a written certification issued pursuant
  288  to this subsection is authorized to disclose information
  289  otherwise subject to any applicable nondisclosure requirement to
  290  persons as is necessary to comply with the subpoena, to an
  291  attorney in order to obtain legal advice or assistance regarding
  292  compliance with the subpoena, or to any other person as allowed
  293  and specifically authorized by the investigative or law
  294  enforcement officer who obtained the subpoena or the supervisory
  295  official who issued the written certification. The subpoena
  296  recipient shall notify any person to whom disclosure of the
  297  subpoena is made pursuant to this paragraph of the existence of,
  298  and length of time associated with, the nondisclosure
  299  requirement.
  300         (c) A person to whom disclosure of the subpoena is made
  301  under paragraph (a) is subject to the nondisclosure requirements
  302  of this subsection in the same manner as the subpoena recipient.
  303         (d) At the request of the investigative or law enforcement
  304  officer who obtained the subpoena or the supervisory official
  305  who issued the written certification, the subpoena recipient
  306  shall identify to the investigative or law enforcement officer
  307  or supervisory official, before or at the time of compliance
  308  with the subpoena, the name of any person to whom disclosure was
  309  made under paragraph (b). If the investigative or law
  310  enforcement officer or supervisory official makes such a
  311  request, the subpoena recipient has an ongoing duty to disclose
  312  the identity of any individuals notified of the subpoena’s
  313  existence throughout the nondisclosure period.
  314         (e) The investigative or law enforcement officer shall
  315  maintain a true copy of a written certification obtained under
  316  this subsection.
  317         (6) An investigative or law enforcement officer acting
  318  under paragraph (2)(b) may apply to a court for an order
  319  extending the nondisclosure period provided in subsection (5)
  320  for a subpoena and commanding a provider of electronic
  321  communication service or remote computing service to whom the
  322  subpoena is directed, for such period as the court deems
  323  appropriate, not to notify any person of the existence of such
  324  subpoena. The court shall enter such order if it determines that
  325  there is reason to believe that notification of the existence of
  326  the subpoena will result in an adverse result.
  327         (7) In the case of contumacy by a person served a subpoena
  328  issued under subsection (2), or his or her refusal to comply
  329  with such a subpoena, the investigative or law enforcement
  330  officer who sought the subpoena may petition a court of
  331  competent jurisdiction to compel compliance. The court may
  332  address the matter as indirect criminal contempt pursuant to
  333  Rule 3.840 of the Florida Rules of Criminal Procedure. Any
  334  prohibited disclosure of a subpoena issued under subsection (2)
  335  for which a period of prohibition of disclosure provided in
  336  subsection (5) or an extension thereof under subsection (6) is
  337  in effect is punishable as provided in s. 934.43. However,
  338  limited disclosure is authorized as provided in subsection (5).
  339         (8) No cause of action shall lie in any court against any
  340  provider of wire or electronic communication service, its
  341  officers, employees, agents, or other specified persons for
  342  providing information, facilities, or assistance in accordance
  343  with the terms of a subpoena under this section.
  344         (9)(a) A provider of wire or electronic communication
  345  services or a remote computing service, upon the request of an
  346  investigative or law enforcement officer, shall take all
  347  necessary steps to preserve records and other evidence in its
  348  possession pending the issuance of a court order or other
  349  process.
  350         (b) Records referred to in paragraph (a) shall be retained
  351  for a period of 90 days, which shall be extended for an
  352  additional 90 days upon a renewed request by an investigative or
  353  law enforcement officer.
  354         (10) A provider of electronic communication service, a
  355  remote computing service, or any other person who furnished
  356  assistance pursuant to this section shall be held harmless from
  357  any claim and civil liability resulting from the disclosure of
  358  information pursuant to this section and shall be reasonably
  359  compensated for reasonable expenses incurred in providing such
  360  assistance. A witness who is subpoenaed to appear to testify
  361  under subsection (2) and who complies with the subpoena must be
  362  paid the same fees and mileage rate paid to a witness appearing
  363  before a court of competent jurisdiction in this state.
  364  
  365  ================= T I T L E  A M E N D M E N T ================
  366  And the title is amended as follows:
  367         Delete lines 2 - 12
  368  and insert:
  369         An act relating to security of communications;
  370         amending s. 934.01, F.S.; revising and providing
  371         legislative findings; amending s. 934.02, F.S.;
  372         redefining the term “oral communication”; defining the
  373         terms “microphone-enabled household device” and
  374         “portable electronic communication device”; amending
  375         s. 934.21, F.S.; revising the exceptions to conduct
  376         that constitutes unlawful access to stored
  377         communications; amending s. 934.23, F.S.; defining
  378         “investigative or law enforcement officer” and
  379         specifying that an exception to such definition is
  380         that in any criminal investigation a law enforcement
  381         agency must request a prosecutor obtain a subpoena for
  382         information obtainable by a subpoena; requiring a
  383         warrant for any content of a stored communications;
  384         deleting provisions relating to obtaining content of
  385         stored communications, with required subscriber
  386         notice, by obtaining a court order for disclosure or
  387         using a subpoena; deleting provisions relating to any
  388         electronic communication held or maintained in a
  389         remote computing service; deleting a provision on not
  390         providing notice applicable to a subpoena for basic
  391         subscriber information; repealing s. 934.24, F.S.;
  392         deleting provisions relating to backup protection for
  393         content of stored communication; deleting provisions
  394         authorizing a subscriber to seek a court order to
  395         quash such subpoena or vacate such court order for
  396         disclosure; amending 934.25, F.S., deleting provisions
  397         relating to delaying subscriber notice when such
  398         notice is required for obtaining contents of stored
  399         communications pursuant to a court order for
  400         disclosure or subpoena; deleting reference to
  401         subscriber notice or delay of such notice in
  402         provisions relating to nondisclosure of a warrant,
  403         court order, or subpoena for stored communications;
  404         creating s. 934.255, F.S.; defining “adverse result,”
  405         “child,” “investigative or law enforcement officer,”
  406         “sexual abuse of child,” and “supervisory official”;
  407         specifying that an exception to the definition of
  408         “investigative or law enforcement officer” is that in
  409         any criminal investigation a law enforcement agency
  410         must request a prosecutor obtain a subpoena for
  411         information obtainable by a subpoena; authorizing an
  412         investigative or law enforcement officer conducting an
  413         investigation into specified matters to subpoena
  414         certain persons or entities for the production of
  415         records, documents, or other tangible things and
  416         testimony for stored communications, excluding basic
  417         subscriber information relevant to stored
  418         communications; authorizing an investigative or law
  419         enforcement officer conducting an investigation into
  420         specified matters to subpoena certain person or
  421         entities for basic subscriber information relevant to
  422         stored communications; specifying requirements for the
  423         issuance of a subpoena; authorizing a subpoenaed
  424         person to petition a court for an order modifying or
  425         setting aside a prohibition on disclosure;
  426         authorizing, under certain circumstances, an
  427         investigative or law enforcement officer to retain
  428         subpoenaed records, documents, or other tangible
  429         objects; prohibiting the disclosure of a subpoena for
  430         a specified period if the disclosure might result in
  431         an adverse result; providing exceptions; requiring an
  432         investigative or law enforcement officer to maintain a
  433         true copy of a written certification required for
  434         nondisclosure; authorizing an investigative or law
  435         enforcement officer to apply to a court for an order
  436         prohibiting certain entities from notifying any person
  437         of the existence of a subpoena under certain
  438         circumstances; authorizing an investigative or law
  439         enforcement officer to petition a court to compel
  440         compliance with a subpoena; authorizing a court to
  441         punish a person who does not comply with a subpoena as
  442         indirect criminal contempt; providing criminal
  443         penalties; precluding a cause of action against
  444         certain entities or persons for providing information,
  445         facilities, or assistance in accordance with terms of
  446         a subpoena; providing for preservation of evidence
  447         pending issuance of legal process; providing that
  448         certain entities or persons shall be held harmless
  449         from any claim and civil liability resulting from
  450         disclosure of specified information; providing for
  451         reasonable compensation for reasonable expenses
  452         incurred in providing assistance; requiring that a
  453         subpoenaed witness be paid certain fees and mileage;