Senate Bill 1934c1

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    Florida Senate - 1999                           CS for SB 1934

    By the Committee on Criminal Justice and Senator Brown-Waite





    307-2014-99

  1                      A bill to be entitled

  2         An act relating to security of communications;

  3         amending s. 934.02, F.S.; redefining the terms

  4         "wire communication," "electronic, mechanical,

  5         or other device," and "electronic

  6         communication"; amending s. 934.03, F.S.;

  7         prohibiting intentional disclosure of certain

  8         communications; prescribing circumstances in

  9         which a person may aid in intercepting a

10         communication; providing penalties; amending s.

11         934.07, F.S.; removing prostitution from

12         offenses that may be investigated using

13         court-ordered intercepts; amending s. 934.09,

14         F.S.; prescribing additional procedures for

15         interception of communications; amending s.

16         934.10, F.S.; providing an additional defense

17         against civil liability; amending s. 934.23,

18         F.S.; requiring providers of electronic

19         communications or remote computing services to

20         provide certain assistance; providing

21         additional grounds for issuance of a court

22         order; holding providers harmless in certain

23         circumstances; providing for compensation for

24         expenses; amending s. 934.27, F.S.; providing

25         an additional defense against civil or criminal

26         liability; amending s. 934.31, F.S.; providing

27         duties of officers authorized to install and

28         use pen registers; amending s. 934.34, F.S.;

29         providing for assistance in the use of a per

30         register or trap and trace device; creating s.

31         934.35, F.S.; providing guidelines and

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  1         standards for emergency installation of pen

  2         registers and trap and trace devices; holding

  3         providers harmless in certain circumstances;

  4         providing for compensation for expenses;

  5         providing an effective date.

  6

  7  Be It Enacted by the Legislature of the State of Florida:

  8

  9         Section 1.  Subsections (1), (4), and (12) of section

10  934.02, Florida Statutes, are amended to read:

11         934.02  Definitions.--As used in this chapter:

12         (1)  "Wire communication" means any aural transfer made

13  in whole or in part through the use of facilities for the

14  transmission of communications by the aid of wire, cable, or

15  other like connection between the point of origin and the

16  point of reception including the use of such connection in a

17  switching station furnished or operated by any person engaged

18  in providing or operating such facilities for the transmission

19  of intrastate, interstate, or foreign communications or

20  communications affecting intrastate, interstate, or foreign

21  commerce.  Such term includes any electronic storage of such

22  communication but does not include the radio portion of a

23  cordless telephone communication that is transmitted between

24  the cordless telephone handset and the base unit.

25         (4)  "Electronic, mechanical, or other device" means

26  any device or apparatus which can be used to intercept a wire,

27  electronic, or oral communication other than:

28         (a)  Any telephone or telegraph instrument, equipment,

29  or facility, or any component thereof:

30         1.  Furnished to the subscriber or user by a provider

31  of wire or electronic communication service in the ordinary

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  1  course of its business and being used by the subscriber or

  2  user in the ordinary course of its business or furnished by

  3  such subscriber or user for connection to the facilities of

  4  such service and used in the ordinary course of its business;

  5  or

  6         2.  Being used by a provider of wire or electronic

  7  communications service communications common carrier in the

  8  ordinary course of its business or by an investigative or law

  9  enforcement officer in the ordinary course of her or his

10  duties.

11         (b)  A hearing aid or similar device being used to

12  correct subnormal hearing to not better than normal.

13         (12)  "Electronic communication" means any transfer of

14  signs, signals, writing, images, sounds, data, or intelligence

15  of any nature transmitted in whole or in part by a wire,

16  radio, electromagnetic, photoelectronic, or photooptical

17  system that affects intrastate, interstate, or foreign

18  commerce, but does not include:

19         (a)  The radio portion of a cordless telephone

20  communication that is transmitted between the cordless

21  telephone handset and the base unit;

22         (a)(b)  Any wire or oral communication;

23         (b)(c)  Any communication made through a tone-only

24  paging device; or

25         (c)(d)  Any communication from an electronic or

26  mechanical device which permits the tracking of the movement

27  of a person or an object; or.

28         (d)  Electronic funds transfer information stored by a

29  financial institution in a communications system used for the

30  electronic storage and transfer of funds.

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  1         Section 2.  Subsection (1), paragraphs (a) and (e) of

  2  subsection (2), and subsection (4) of section 934.03, Florida

  3  Statutes, are amended to read:

  4         934.03  Interception and disclosure of wire, oral, or

  5  electronic communications prohibited.--

  6         (1)  Except as otherwise specifically provided in this

  7  chapter, any person who:

  8         (a)  Intentionally intercepts, endeavors to intercept,

  9  or procures any other person to intercept or endeavor to

10  intercept any wire, oral, or electronic communication;

11         (b)  Intentionally uses, endeavors to use, or procures

12  any other person to use or endeavor to use any electronic,

13  mechanical, or other device to intercept any oral

14  communication when:

15         1.  Such device is affixed to, or otherwise transmits a

16  signal through, a wire, cable, or other like connection used

17  in wire communication; or

18         2.  Such device transmits communications by radio or

19  interferes with the transmission of such communication;

20         (c)  Intentionally discloses, or endeavors to disclose,

21  to any other person the contents of any wire, oral, or

22  electronic communication, knowing or having reason to know

23  that the information was obtained through the interception of

24  a wire, oral, or electronic communication in violation of this

25  subsection; or

26         (d)  Intentionally uses, or endeavors to use, the

27  contents of any wire, oral, or electronic communication,

28  knowing or having reason to know that the information was

29  obtained through the interception of a wire, oral, or

30  electronic communication in violation of this subsection; or

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  1         (e)  Intentionally discloses, or endeavors to disclose,

  2  to any other person the contents of any wire, oral, or

  3  electronic communication intercepted by means authorized by

  4  subparagraph (2)(a)2., paragraph (2)(b) or (c), s. 934.07, or

  5  s. 934.09 when that person: knows or has reason to know that

  6  the information was obtained through the interception of such

  7  a communication in connection with a criminal investigation,

  8  has obtained or received the information in connection with a

  9  criminal investigation, and intends to improperly obstruct,

10  impede, or interfere with a duly authorized criminal

11  investigation;

12

13  shall be punished as provided in subsection (4).

14         (2)(a)1.  It is lawful under ss. 934.03-934.09 for an

15  operator of a switchboard, or an officer, employee, or agent

16  of a provider of wire or electronic communication service

17  whose facilities are used in the transmission of a wire or

18  electronic communication, to intercept, disclose, or use that

19  communication in the normal course of his or her employment

20  while engaged in any activity which is a necessary incident to

21  the rendition of his or her service or to the protection of

22  the rights or property of the provider of that service, except

23  that a provider of wire communication service to the public

24  shall not utilize service observing or random monitoring

25  except for mechanical or service quality control checks.

26         2.  Notwithstanding any other law, a provider of wire,

27  oral, or electronic communication service, or an officer,

28  employee, or agent thereof, or landlord, custodian, or other

29  person, may provide information, facilities, or technical

30  assistance to a person authorized by law to intercept wire,

31  oral, or electronic communications if such provider, or an

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  1  officer, employee, or agent thereof, or landlord, custodian,

  2  or other person, has been provided with:

  3         a.  A court order directing such assistance signed by

  4  the authorizing judge, or

  5         b.  A certification in writing by a person specified in

  6  s. 934.09(7) that no warrant or court order is required by

  7  law, that all statutory requirements have been met, and that

  8  the specified assistance is required

  9

10  setting forth the period of time during which the provision of

11  the information, facilities, or technical assistance is

12  authorized and specifying the information, facilities, or

13  technical assistance required.

14         3.  A provider of wire, oral, or electronic

15  communication service, or an officer, employee, or agent

16  thereof, or landlord, custodian, or other person may not

17  disclose the existence of any interception or the device used

18  to accomplish the interception with respect to which the

19  person has been furnished an order under ss. 934.03-934.09,

20  except as may otherwise be required by legal process and then

21  only after prior notice to the Governor, the Attorney General,

22  the statewide prosecutor, or a state attorney, as may be

23  appropriate.  Any such disclosure renders such person liable

24  for the civil damages provided under s. 934.10 and such person

25  may be prosecuted under s. 934.43.  An action may not be

26  brought against any provider of wire, oral, or electronic

27  communication service, or an officer, employee, or agent

28  thereof, or landlord, custodian, or other person for providing

29  information, facilities, or assistance in accordance with the

30  terms of a court order under ss. 934.03-934.09.

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  1         (e)  It is unlawful to intercept any wire, oral, or

  2  electronic communication for the purpose of committing any

  3  criminal act.

  4         (4)(a)  Except as provided in paragraph (b), whoever

  5  violates subsection (1) is guilty of a felony of the third

  6  degree, punishable as provided in s. 775.082, s. 775.083, s.

  7  775.084, or s. 934.41.

  8         (b)  If the offense is a first offense under paragraph

  9  (a) and is not for any tortious or illegal purpose or for

10  purposes of direct or indirect commercial advantage or private

11  commercial gain, and the wire or electronic communication with

12  respect to which the offense under paragraph (a) was committed

13  is a radio communication that is not scrambled, or encrypted,

14  or transmitted using modulation techniques the essential

15  parameters of which have been withheld from the public with

16  the intention of preserving the privacy of such communication,

17  then:

18         1.  If the communication is not the radio portion of a

19  cellular telephone communication, a cordless telephone

20  communication that is transmitted between the cordless

21  telephone handset and the base unit, a public land mobile

22  radio service communication, or a paging service

23  communication, and the conduct is not that described in

24  subparagraph (2)(h)7., the person committing the offense is

25  guilty of a misdemeanor of the first degree, punishable as

26  provided in s. 775.082 or s. 775.083.

27         2.  If the communication is the radio portion of a

28  cellular telephone communication, a cordless telephone

29  communication that is transmitted between the cordless

30  telephone handset and the base unit, a public land mobile

31  radio service communication, or a paging service

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  1  communication, the person committing the offense is guilty of

  2  a misdemeanor of the second degree, punishable as provided in

  3  s. 775.082 or s. 775.083.

  4         Section 3.  Section 934.07, Florida Statutes, is

  5  amended to read:

  6         934.07  Authorization for interception of wire, oral,

  7  or electronic communications.--The Governor, the Attorney

  8  General, the statewide prosecutor, or any state attorney may

  9  authorize an application to a judge of competent jurisdiction

10  for, and such judge may grant in conformity with ss.

11  934.03-934.09, an order authorizing or approving the

12  interception of wire, oral, or electronic communications by

13  the Department of Law Enforcement or any law enforcement

14  agency as defined in s. 934.02 having responsibility for the

15  investigation of the offense as to which the application is

16  made when such interception may provide or has provided

17  evidence of the commission of the offense of murder,

18  kidnapping, arson, gambling, robbery, burglary, theft, dealing

19  in stolen property, prostitution, criminal usury, bribery, or

20  extortion; any violation of chapter 893; any violation of the

21  provisions of the Florida Anti-Fencing Act; any violation of

22  chapter 895; any violation of chapter 896; any violation of

23  chapter 815; any violation of chapter 847; any violation of s.

24  827.071; any violation of s. 944.40; or any conspiracy to

25  commit any violation of the laws of this state relating to the

26  crimes specifically enumerated above.

27         Section 4.  Paragraph (b) of subsection (1) and

28  paragraph (d) of subsection (3) of section 934.09, Florida

29  Statutes, are amended, present subsections (7) through (11) of

30  that section are renumbered subsections (8) through (12),

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  1  respectively, and amended, and a new subsection (7) is added

  2  to that section, to read:

  3         934.09  Procedure for interception of wire, oral, or

  4  electronic communications.--

  5         (1)  Each application for an order authorizing or

  6  approving the interception of a wire, oral, or electronic

  7  communication under ss. 934.03-934.09 shall be made in writing

  8  upon oath or affirmation to a judge of competent jurisdiction

  9  and shall state the applicant's authority to make such

10  application.  Each application shall include the following

11  information:

12         (b)  A full and complete statement of the facts and

13  circumstances relied upon by the applicant to justify his or

14  her belief that an order should be issued, including:

15         1.  Details as to the particular offense that has been,

16  is being, or is about to be committed.

17         2.  Except as provided in subsection (11) (10), a

18  particular description of the nature and location of the

19  facilities from which, or the place where, the communications

20  are to be intercepted.

21         3.  A particular description of the type of

22  communications sought to be intercepted.

23         4.  The identity of the person, if known, committing

24  the offense and whose communications are to be intercepted.

25         (3)  Upon such application, the judge may enter an ex

26  parte order, as requested or as modified, authorizing or

27  approving interception of wire, oral, or electronic

28  communications within the territorial jurisdiction of the

29  court in which the judge is sitting, and outside such

30  jurisdiction but within the State of Florida in the case of a

31  mobile interception device authorized by the judge within such

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  1  jurisdiction, if the judge determines on the basis of the

  2  facts submitted by the applicant that:

  3         (d)  Except as provided in subsection (11) (10), there

  4  is probable cause for belief that the facilities from which,

  5  or the place where, the wire, oral, or electronic

  6  communications are to be intercepted are being used, or are

  7  about to be used, in connection with the commission of such

  8  offense, or are leased to, listed in the name of, or commonly

  9  used by such person.

10         (7)  Notwithstanding any other provision of this

11  chapter, any investigative or law enforcement officer

12  specifically designated by the Governor, the Attorney General,

13  the statewide prosecutor, or a state attorney acting under

14  this chapter, who reasonably determines that:

15         (a)  An emergency exists which:

16         1.  Involves immediate danger of death or serious

17  physical injury to any person; conspiratorial activities

18  characteristic of organized crime; or the danger of escape of

19  a prisoner; and

20         2.  Requires that a wire, oral, or electronic

21  communication be intercepted before an order authorizing such

22  interception can, with due diligence, be obtained; and

23         (b)  There are grounds upon which an order could be

24  entered under this chapter to authorize such interception

25

26  may intercept such wire, oral, or electronic communication if

27  an application for an order approving the interception is made

28  in accordance with this section within 48 hours after the

29  interception has occurred or begins to occur. In the absence

30  of an order, such interception shall immediately terminate

31  when the communication sought is obtained or when the

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  1  application for the order is denied, whichever is earlier. If

  2  such application for approval is denied, or in any other case

  3  in which the interception is terminated without an order

  4  having been issued, the contents of any wire, oral, or

  5  electronic communication intercepted shall be treated as

  6  having been obtained in violation of s. 934.03(4), and an

  7  inventory shall be served as provided for in paragraph (8)(e)

  8  on the person named in the application.

  9         (8)(a)(7)(a)  The contents of any wire, oral, or

10  electronic communication intercepted by any means authorized

11  by ss. 934.03-934.09 shall, if possible, be recorded on tape

12  or wire or other comparable device.  The recording of the

13  contents of any wire, oral, or electronic communication under

14  this subsection shall be kept in such a way as will protect

15  the recording from editing or other alterations.  Immediately

16  upon the expiration of the period of the order, or extensions

17  thereof, such recordings shall be made available to the judge

18  issuing such order and sealed under his or her directions.

19  Custody of the recordings shall be wherever the judge orders.

20  They shall not be destroyed except upon an order of the

21  issuing or denying judge, or that judge's successor in office,

22  and in any event shall be kept for 10 years. Duplicate

23  recordings may be made for use or disclosure pursuant to the

24  provisions of s. 934.08(1) and (2) for investigations.

25         (b)  The presence of the seal provided for by this

26  subsection, or a satisfactory explanation for the absence

27  thereof, shall be a prerequisite for the use or disclosure of

28  the contents of any wire, oral, or electronic communication or

29  evidence derived therefrom under s. 934.08(3), as required by

30  federal law.

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  1         (c)  Applications made and orders granted under ss.

  2  934.03-934.09 shall be sealed by the judge. Custody of the

  3  applications and orders shall be wherever the judge directs.

  4  As required by federal law, such applications and orders shall

  5  be disclosed only upon a showing of good cause before a judge

  6  of competent jurisdiction and shall not be destroyed except on

  7  order of the issuing or denying judge, or that judge's

  8  successor in office, and in any event shall be kept for 10

  9  years.

10         (d)  Any violation of the provisions of this subsection

11  may be punished as contempt of the issuing or denying judge.

12         (e)  Within a reasonable time but not later than 90

13  days after the termination of the period of an order or

14  extensions thereof, the issuing or denying judge shall cause

15  to be served on the persons named in the order or the

16  application, and such other parties to intercepted

17  communications as the judge may determine in his or her

18  discretion to be in the interest of justice, an inventory

19  which shall include notice of:

20         1.  The fact of the entry of the order or the

21  application.

22         2.  The date of the entry and the period of authorized,

23  approved, or disapproved interception, or the denial of the

24  application.

25         3.  The fact that during the period wire, oral, or

26  electronic communications were or were not intercepted.

27

28  The judge, upon the filing of a motion, may make available to

29  such person or the person's counsel for inspection such

30  portions of the intercepted communications, applications, and

31  orders as the judge determines to be in the interest of

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  1  justice.  On an ex parte showing of good cause to a judge of

  2  competent jurisdiction, the serving of the inventory required

  3  by this paragraph may be postponed.

  4         (9)(8)  As required by federal law, the contents of any

  5  intercepted wire, oral, or electronic communication or

  6  evidence derived therefrom shall not be received in evidence

  7  or otherwise disclosed in any trial, hearing, or other

  8  proceeding unless each party, not less than 10 days before the

  9  trial, hearing, or proceeding, has been furnished with a copy

10  of the court order and accompanying application under which

11  the interception was authorized or approved. This 10-day

12  period may be waived by the judge if he or she finds that it

13  was not possible to furnish the party with the above

14  information 10 days before the trial, hearing, or proceeding

15  and that the party will not be prejudiced by the delay in

16  receiving such information.

17         (10)(a)(9)(a)  Any aggrieved person in any trial,

18  hearing, or proceeding in or before any court, department,

19  officer, agency, regulatory body, or other authority may move

20  to suppress the contents of any intercepted wire, oral, or

21  electronic communication, or evidence derived therefrom, on

22  the grounds that:

23         1.  The communication was unlawfully intercepted;

24         2.  The order of authorization or approval under which

25  it was intercepted is insufficient on its face; or

26         3.  The interception was not made in conformity with

27  the order of authorization or approval.

28

29  Such motion shall be made before the trial, hearing, or

30  proceeding unless there was no opportunity to make such motion

31  or the person was not aware of the grounds of the motion.  If

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  1  the motion is granted, the contents of the intercepted wire or

  2  oral communication, or evidence derived therefrom, shall be

  3  treated as having been obtained in violation of ss.

  4  934.03-934.09.  The judge, upon the filing of such motion by

  5  the aggrieved person, may make available to the aggrieved

  6  person or his or her counsel for inspection such portions of

  7  the intercepted communication or evidence derived therefrom as

  8  the judge determines to be in the interest of justice.

  9         (b)  In addition to any other right to appeal, the

10  state shall have the right to appeal from an order granting a

11  motion to suppress made under paragraph (a) or the denial of

12  an application for an order of approval if the attorney shall

13  certify to the judge or other official granting such motion or

14  denying such application that the appeal is not taken for

15  purposes of delay. Such appeal shall be taken within 30 days

16  after the date the order was entered and shall be diligently

17  prosecuted.

18         (c)  The remedies and sanctions described in ss.

19  934.03-934.10 with respect to the interception of electronic

20  communications are the only judicial remedies and sanctions

21  for violations of those sections involving such

22  communications.

23         (11)(10)  The requirements of subparagraph (1)(b)2. and

24  paragraph (3)(d) relating to the specification of the

25  facilities from which, or the place where, the communication

26  is to be intercepted do not apply if:

27         (a)  In the case of an application with respect to the

28  interception of an oral communication:

29         1.  The application is by an agent or officer of a law

30  enforcement agency and is approved by the Governor, the

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  1  Attorney General, the statewide prosecutor, or a state

  2  attorney.

  3         2.  The application contains a full and complete

  4  statement as to why such specification is not practical and

  5  identifies the person committing the offense and whose

  6  communications are to be intercepted.

  7         3.  The judge finds that such specification is not

  8  practical.

  9         (b)  In the case of an application with respect to a

10  wire or electronic communication:

11         1.  The application is by an agent or officer of a law

12  enforcement agency and is approved by the Governor, the

13  Attorney General, the statewide prosecutor, or a state

14  attorney;.

15         2.  The application identifies the person believed to

16  be committing the offense and whose communications are to be

17  intercepted and the applicant makes a showing that there is

18  probable cause to believe that the person's actions could have

19  the effect of thwarting interception from a specified

20  facility; of a purpose, on the part of that person, to thwart

21  interception by changing facilities.

22         3.  The judge finds that such showing has been

23  adequately made; and purpose has been adequately shown.

24         4.  The order authorizing or approving the interception

25  is limited to interception only for such time as it is

26  reasonable to presume that the person identified in the

27  application is or was reasonably proximate to the instrument

28  through which such communication will be or was transmitted.

29         (12)(11)  If an interception of a communication is to

30  be carried out pursuant to subsection (11)(a) (10), such

31  interception may not begin until the facilities from which, or

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  1  the place where, the communication is to be intercepted is

  2  ascertained by the person implementing the interception order.

  3  A provider of wire or electronic communications service that

  4  has received an order as provided under paragraph (11)(b)

  5  (10)(b) may petition the court to modify or quash the order on

  6  the ground that the interception cannot be performed in a

  7  timely or reasonable fashion.  The court, upon notice to the

  8  state, shall decide such a petition expeditiously.

  9         Section 5.  Subsection (2) of section 934.10, Florida

10  Statutes, is amended to read:

11         934.10  Civil remedies.--

12         (2)  A good faith reliance on:

13         (a)  A court order, subpoena, or legislative

14  authorization as provided in ss. 934.03-934.09;, or

15         (b)  A request of an investigative or law enforcement

16  officer under s. 943.09(7); or

17         (c)(b)  A good faith determination that federal or

18  Florida or federal law, other than 18 U.S.C. s. 2511(2)(d),

19  permitted the conduct complained of

20

21  shall constitute a complete defense to any civil or criminal,

22  or administrative action arising out of such conduct under the

23  laws of this state.

24         Section 6.  Subsections (4) and (5) of section 934.23,

25  Florida Statutes, are amended, and subsections (7) and (8) are

26  added to that section, to read:

27         934.23  Requirements for governmental access.--

28         (4)(a)  Except as provided in paragraph (b), a provider

29  of electronic communication service or remote computing

30  service may disclose a record or other information pertaining

31  to a subscriber or customer of such service, not including the

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  1  contents of communication covered by subsection (1) or

  2  subsection (2), to any person other than an investigative or

  3  law enforcement officer.

  4         (b)  A provider of electronic communication service or

  5  remote computing service shall disclose a record or other

  6  information pertaining to a subscriber to or customer of such

  7  service, not including the contents of communications covered

  8  by subsection (1) or subsection (2), to an investigative or

  9  law enforcement officer only when the investigative or law

10  enforcement officer:

11         1.  Uses a subpoena;

12         1.2.  Obtains a warrant issued by the judge of a court

13  of competent jurisdiction;

14         2.3.  Obtains a court order for such disclosure under

15  subsection (5); or

16         3.4.  Has the consent of the subscriber or customer to

17  such disclosure.

18         (c)  A provider of electronic communication service or

19  remote computing service shall disclose to an investigative or

20  law enforcement officer the name, address, telephone toll

21  billing records, telephone number or other subscriber number

22  or identity, and length of service as a subscriber or customer

23  of such service and the types of services the subscriber or

24  customer used when the governmental entity uses a subpoena.

25         (d)(c)  An investigative or law enforcement officer who

26  receives records or information under this subsection is not

27  required to provide notice to a subscriber or customer.

28         (5)  A court order for disclosure under subsection (2),

29  subsection (3), or subsection (4) shall issue only if the

30  investigative or law enforcement officer offers specific and

31  articulable facts showing that there are reasonable grounds

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  1  shows that there is reason to believe the contents of a wire

  2  or electronic communication or the records of other

  3  information sought are relevant and material to an ongoing

  4  criminal investigation to a legitimate law enforcement

  5  inquiry.  A court issuing an order pursuant to this section,

  6  on a motion made promptly by the service provider, may quash

  7  or modify such order on motion made promptly by the service

  8  provider if the information or records requested are unusually

  9  voluminous in nature or compliance with such order otherwise

10  would cause an undue burden on such provider.

11         (7)(a)  A provider of wire or electronic communication

12  services or a remote computing service, upon the request of an

13  investigative or law enforcement officer, shall take all

14  necessary steps to preserve records and other evidence in its

15  possession pending the issuance of a court order or other

16  process.

17         (b)  Records referred to in paragraph (a) shall be

18  retained for a period of 90 days, which shall be extended for

19  an additional 90-day period upon a renewed request by an

20  investigative or law enforcement officer.

21         (8)  A provider of electronic communication service or

22  remote computing service or any other person who furnished

23  assistance pursuant to this section shall be held harmless

24  from any claims and civil liability resulting from the

25  disclosure of information pursuant to this section and shall

26  be reasonably compensated for reasonable expenses incurred in

27  providing such assistance.

28         Section 7.  Subsection (4) of section 934.27, Florida

29  Statutes, is amended to read:

30         934.27  Civil action:  relief; damages; defenses.--

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  1         (4)  A good faith reliance on any of the following is a

  2  complete defense to any civil or criminal action brought under

  3  ss. 934.21-934.28:

  4         (a)  A court warrant or order, a subpoena, or a

  5  statutory authorization.

  6         (b)  A request of an investigative or law enforcement

  7  officer under s. 934.09(7).

  8         (c)(b)  A good faith determination that s. 934.03(3)

  9  permitted the conduct complained of.

10         Section 8.  Present subsection (3) of section 934.31,

11  Florida Statutes, is renumbered as subsection (4), and a new

12  subsection (3) is added to that section, to read:

13         934.31  General prohibition on pen register and trap

14  and trace device use; exception.--

15         (3)  An investigative or law enforcement officer

16  authorized to install and use a pen register under ss.

17  934.31-934.34 shall use technology reasonably available to him

18  or her which restricts the recording or decoding of electronic

19  or other impulses to the dialing and signaling information

20  used in call processing.

21         Section 9.  Subsection (2) of section 934.34, Florida

22  Statutes, is amended to read:

23         934.34  Assistance in installation and use of a pen

24  register or a trap and trace device.--

25         (2)  Upon the request of the applicant specified in s.

26  934.32(1), a provider of a wire or electronic communication

27  service, landlord, custodian, or other person shall install a

28  trap and trace device forthwith on the appropriate line and

29  shall furnish such investigative or law enforcement officer or

30  other applicant all additional information, facilities, and

31  technical assistance, including installation and operation of

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  1  the device unobtrusively and with a minimum of interference

  2  with the services that the person so ordered by the court

  3  accords the party with respect to whom the installation and

  4  use is to take place if such installation and assistance is

  5  directed by a court order as provided in s. 934.33(2)(b).

  6  Unless otherwise ordered by the court, the results of the trap

  7  and trace device shall be furnished, pursuant to s.

  8  934.33(2)(b) or s. 934.35, to an officer of the law

  9  enforcement agency designated in the court order at reasonable

10  intervals during regular business hours for the duration of

11  the order.  The obligation of a provider of electronic

12  communication service under such an order or under such

13  emergency pen register or trap and trace device installation

14  may include, but is not limited to, conducting an in-progress

15  trace, or providing other assistance to support the

16  investigation as may be specified in the order.

17         Section 10.  Section 934.35, Florida Statutes, is

18  created to read:

19         934.35  Emergency pen register and trap and trace

20  device installation.--

21         (1)  Notwithstanding any other provision of this

22  chapter, any investigative or law enforcement officer

23  specially designated by the Governor, the Attorney General,

24  the statewide prosecutor, or a state attorney acting pursuant

25  to this chapter, who reasonably determines that:

26         (a)  An emergency exists which:

27         1.  Involves immediate danger of death or serious

28  physical injury to any person; conspiratorial activities

29  characteristic of organized crime; or the danger of escape of

30  a prisoner; and

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  1         2.  Requires the installation and use of a pen register

  2  or a trap and trace device before an order authorizing such

  3  installation and use can, with due diligence, be obtained; and

  4         (b)  There are grounds upon which an order could be

  5  entered under this chapter to authorize such interception,

  6

  7  may have installed and use a pen register or trap and trace

  8  device if, within 48 hours after the installation has occurred

  9  or begins to occur, an order approving the installation or use

10  is issued in accordance with s. 934.33.

11         (2)  In the absence of an authorizing order, such use

12  shall immediately terminate when the information sought is

13  obtained, when the application for the order is denied, or

14  when 48 hours have lapsed since the installation of the pen

15  register or trap and trace device, whichever is earlier.

16         (3)  The knowing installation or use by any

17  investigative or law enforcement officer of a pen register or

18  trap and trace device pursuant to subsection (1) without

19  application for the authorizing order within 48 hours after

20  the installation constitutes a violation of s. 934.31.

21         (4)  A provider of wire or electronic service,

22  landlord, custodian, or other person who furnished facilities

23  or technical assistance pursuant to this section shall be held

24  harmless from any claims and civil liability resulting from

25  the disclosure of information pursuant to this section and

26  shall be reasonably compensated for reasonable expenses

27  incurred in providing such facilities and assistance.

28         Section 11.  This act shall take effect October 1,

29  1999.

30

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 1934

  3

  4  -     Provides that a person seeking to have a service
          provider disclose certain information regarding a
  5        customer or subscriber, pursuant to law, must compensate
          the provider for reasonable expenses incurred in
  6        disclosing such information, and also immunizes the
          provider from civil and criminal liability for such
  7        disclosure.

  8  -     Provides that a person installing or using an emergency
          pen register or trap or trace device, pursuant to law,
  9        must compensate the service provider for reasonable
          expenses incurred in providing technical assistance.
10
    -     Provides that the federal one-party consent law does not
11        apply to construction of a defense based upon good faith
          reliance on Florida and federal law.
12
    -     Deletes prostitution from the list of prescribed
13        offenses for which a communications interception may be
          authorized.
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