The Florida Senate

92.605  Production of certain records by Florida businesses and out-of-state corporations.--

(1)  For the purposes of this section, the term:

(a)  "Adverse result" includes one of the following consequences to notification of the existence of a court order, a subpoena, or a search warrant:

1.  Danger to the life or physical safety of an individual.

2.  A flight from prosecution.

3.  The destruction of or tampering with evidence.

4.  The intimidation of potential witnesses.

5.  Serious jeopardy to an investigation or undue delay of a trial.

(b)  "Applicant" means a law enforcement officer who is seeking a court order or subpoena under s. 16.56, s. 27.04, s. 905.185, or s. 914.04 or who is issued a search warrant under s. 933.01, or anyone who is authorized to issue a subpoena under the Florida Rules of Criminal Procedure.

(c)  "Business" means any business, institution, association, profession, occupation, or calling of any kind, whether or not conducted for profit.

(d)  "Electronic communication services" and "remote computing services" have the same meaning as provided in the Electronic Communications Privacy Act in chapter 121 (commencing with s. 2701) of part I of Title 18 of the United States Code Annotated. This section does not apply to corporations that do not provide those services to the public.

(e)  "Out-of-state corporation" means any corporation that is qualified to do business in this state under s. 607.1501

(f)  "Out-of-state record of regularly conducted business activity" means a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, maintained in another state or country.

(g)  "Out-of-state certification" means a written declaration made and signed in another state or country by the custodian of an out-of-state record of regularly conducted business activity or another qualified person that, if falsely made, would subject the declarant to criminal penalty under the laws of another state or country.

(h)  "Properly served" means delivery by hand or in a manner reasonably allowing for proof of delivery if delivered by United States mail, overnight delivery service, or facsimile to a person or entity properly registered to do business in any state. In order for an out-of-state corporation to be properly served, the service described in this paragraph must be effected on the corporation's registered agent.

(2)  The following provisions apply to any subpoena, court order, or search warrant issued in compliance with the Electronic Communications Privacy Act in chapter 121 (commencing with s. 2701) of part I of Title 18 of the United States Code and that is subject to this chapter, which allows a search for records that are in the actual or constructive possession of an out-of-state corporation that provides electronic communication services or remote computing services to the public, when those records would reveal the identity of the customers using those services; data stored by, or on behalf of, the customers; the customers' usage of those services; or the recipients or destinations of communications sent to or from those customers.

(a)  Any subpoena, court order, or warrant issued under this subsection must contain the following language in bold type on the first page of the document: "This (subpoena, order, warrant) is issued pursuant to Florida Statute s. 92.605 A response is due within 20 business days of receipt of this (subpoena, order, warrant) unless a longer time period is stated herein."

(b)  When properly served with a subpoena, court order, or search warrant issued by a Florida court or other applicant, an out-of-state corporation subject to this section shall provide to the applicant all records sought pursuant to such subpoena, court order, or warrant within 20 business days after receipt, or the date indicated within the subpoena, if later, including those records maintained or located outside the State of Florida. If the records cannot be produced within the 20-day time period, the out-of-state corporation shall notify the applicant within the 20-day time period and agree to produce the documents at the earliest possible time. The applicant shall pay the out-of-state corporation the reasonable expenses associated with compliance.

(c)  When the applicant makes a showing and the court finds that failure to produce records within 20 business days would cause an adverse result, the subpoena, court order, or warrant may require production of records within less than 20 business days. A court may reasonably extend the time required for production of the records upon finding that the out-of-state corporation needs the extension and that an extension of time would not cause an adverse result.

(d)  An out-of-state corporation seeking to quash or object to the subpoena, court order, or warrant must seek relief from the court issuing such subpoena, court order, or warrant within the time required for production of records under this section. The issuing court shall hear and decide that motion within 5 court days after the motion is filed.

(e)  Upon written request from the applicant or if ordered by the court, the out-of-state corporation shall verify the authenticity of records that it produces by providing an affidavit that complies with the requirements set forth in this section. Records produced in compliance with this section are admissible in evidence as set forth in subsection (5).

(3)  A Florida business that provides electronic communication services or remote computing services to the public, when served with a subpoena, court order, or warrant issued by another state to produce records that would reveal the identity of the customers using those services; data stored by, or on behalf of, the customers; the customers' usage of those services; or the recipients or destinations of communications sent to or from those customers shall produce those records as if that subpoena, court order, or warrant had been issued by a Florida court.

(4)  A cause of action does not arise against any out-of-state corporation or Florida business subject to this section, or its officers, employees, agents, or other specified persons, for providing records, information, facilities, or assistance in accordance with the terms of a subpoena, court order, or warrant subject to this section.

(5)  In a criminal proceeding in a court of this state, an out-of-state record of regularly conducted business activity, or a copy of such record, shall not be excluded as hearsay evidence by s. 90.802, if an out-of-state certification attests that:

(a)  Such record was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters.

(b)  Such record was kept in the course of a regularly conducted business activity.

(c)  The business activity made such a record as a regular practice.

(d)  If such record is not the original, it is a duplicate of the original, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

(6)  An out-of-state certification under this section shall authenticate such record or duplicate.

(7)  No evidence in such records in the form of opinion or diagnosis is admissible under subsection (5) unless such opinion or diagnosis would be admissible under ss. 90.701-90.705 if the person whose opinion is recorded were to testify to the opinion directly.

(8)  As soon after the arraignment as practicable, or 60 days prior to trial, a party intending to offer in evidence under this section an out-of-state record of regularly conducted business activity shall provide written notice of that intention to each other party. A motion opposing admission in evidence of such record shall be made by the opposing party and determined by the court before trial. Failure by a party to file such motion before trial shall constitute a waiver of objection to such record or duplicate, but the court for cause shown may grant relief from the waiver.

(9)  In any criminal case, the content of any electronic communication may be obtained under this section only by court order or by the issuance of a search warrant, unless otherwise provided under the Electronic Communications Privacy Act or other provision of law.

History.--s. 3, ch. 2003-71.