CODING: Words stricken are deletions; words underlined are additions.





                                                  SENATE AMENDMENT

    Bill No. CS/HB 1123

    Amendment No.    

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10                                                                

11  Senator Brown-Waite moved the following amendment to amendment

12  (733266):

13

14         Senate Amendment (with title amendment) 

15         On page 3, line 18, through

16            page 4, line 13, delete those lines

17

18  and insert:

19         Section 5.  Subsections (1), (4), and (12) of section

20  934.02, Florida Statutes, are amended to read:

21         934.02  Definitions.--As used in this chapter:

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

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

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

25  other like connection between the point of origin and the

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

27  switching station furnished or operated by any person engaged

28  in providing or operating such facilities for the transmission

29  of intrastate, interstate, or foreign communications or

30  communications affecting intrastate, interstate, or foreign

31  commerce.  Such term includes any electronic storage of such

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 1123

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 1  communication but does not include the radio portion of a

 2  cordless telephone communication that is transmitted between

 3  the cordless telephone handset and the base unit.

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

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

 6  electronic, or oral communication other than:

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

 8  or facility, or any component thereof:

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

10  of wire or electronic communication service in the ordinary

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

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

13  such subscriber or user for connection to the facilities of

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

15  or

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

17  communications service communications common carrier in the

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

19  enforcement officer in the ordinary course of her or his

20  duties.

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

22  correct subnormal hearing to not better than normal.

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

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

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

26  radio, electromagnetic, photoelectronic, or photooptical

27  system that affects intrastate, interstate, or foreign

28  commerce, but does not include:

29         (a)  The radio portion of a cordless telephone

30  communication that is transmitted between the cordless

31  telephone handset and the base unit;

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 1123

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

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

 3  paging device; or

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

 5  mechanical device which permits the tracking of the movement

 6  of a person or an object; or.

 7         (d)  Electronic funds transfer information stored by a

 8  financial institution in a communications system used for the

 9  electronic storage and transfer of funds.

10         Section 6.  Subsection (1), paragraphs (a), (e), and

11  (g) of subsection (2), and subsection (4) of section 934.03,

12  Florida Statutes, are amended to read:

13         934.03  Interception and disclosure of wire, oral, or

14  electronic communications prohibited.--

15         (1)  Except as otherwise specifically provided in this

16  chapter, any person who:

17         (a)  Intentionally intercepts, endeavors to intercept,

18  or procures any other person to intercept or endeavor to

19  intercept any wire, oral, or electronic communication;

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

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

22  mechanical, or other device to intercept any oral

23  communication when:

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

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

26  in wire communication; or

27         2.  Such device transmits communications by radio or

28  interferes with the transmission of such communication;

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

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

31  electronic communication, knowing or having reason to know

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 1123

    Amendment No.    





 1  that the information was obtained through the interception of

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

 3  subsection; or

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

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

 6  knowing or having reason to know that the information was

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

 8  electronic communication in violation of this subsection; or

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

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

11  electronic communication intercepted by means authorized by

12  subparagraph (2)(a)2., paragraph (2)(b), paragraph (2)(c), s.

13  934.07, or s. 934.09 when that person knows or has reason to

14  know that the information was obtained through the

15  interception of such a communication in connection with a

16  criminal investigation, has obtained or received the

17  information in connection with a criminal investigation, and

18  intends to improperly obstruct, impede, or interfere with a

19  duly authorized criminal investigation;

20

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

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

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

24  of a provider of wire or electronic communication service

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

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

27  communication in the normal course of his or her employment

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

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

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

31  that a provider of wire communication service to the public

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 1123

    Amendment No.    





 1  shall not utilize service observing or random monitoring

 2  except for mechanical or service quality control checks.

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

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

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

 6  person, may provide information, facilities, or technical

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

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

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

10  or other person, has been provided with:

11         a.  A court order directing such assistance signed by

12  the authorizing judge; or

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

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

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

16  the specified assistance is required, setting forth the period

17  of time during which the provision of the information,

18  facilities, or technical assistance is authorized and

19  specifying the information, facilities, or technical

20  assistance required.

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

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

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

24  disclose the existence of any interception or the device used

25  to accomplish the interception with respect to which the

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

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

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

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

30  appropriate.  Any such disclosure renders such person liable

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

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                                                  SENATE AMENDMENT

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    Amendment No.    





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

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

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

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

 5  information, facilities, or assistance in accordance with the

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

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

 8  electronic communication for the purpose of committing any

 9  criminal act.

10         (g)  It is lawful under ss. 934.03-934.09 for an

11  employee of:

12         1.  An ambulance service licensed pursuant to s.

13  401.25, a fire station employing firefighters as defined by s.

14  633.30, a public utility as defined by ss. 365.01 and 366.02,

15  a law enforcement agency as defined by s. 934.02(10), or any

16  other entity with published emergency telephone numbers;

17         2.  An agency operating an emergency telephone number

18  "911" system established pursuant to s. 365.171; or

19         3.  The central abuse hotline operated pursuant to s.

20  39.201,

21

22  to intercept and record incoming wire communications; however,

23  such employee may intercept and record incoming wire

24  communications on designated "911" telephone numbers and

25  published nonemergency emergency telephone numbers staffed by

26  trained dispatchers at public safety answering points only.

27  It is also lawful for such employee to intercept and record

28  outgoing wire communications to the numbers from which such

29  incoming wire communications were placed when necessary to

30  obtain information required to provide the emergency services

31  being requested.

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 1123

    Amendment No.    





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

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

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

 4  775.084, or s. 934.41.

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

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

 7  purposes of direct or indirect commercial advantage or private

 8  commercial gain, and the wire or electronic communication with

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

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

11  or transmitted using modulation techniques the essential

12  parameters of which have been withheld from the public with

13  the intention of preserving the privacy of such communication,

14  then:

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

16  cellular telephone communication, a cordless telephone

17  communication that is transmitted between the cordless

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

19  radio service communication, or a paging service

20  communication, and the conduct is not that described in

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

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

23  provided in s. 775.082 or s. 775.083.

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

25  cellular telephone communication, a cordless telephone

26  communication that is transmitted between the cordless

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

28  radio service communication, or a paging service

29  communication, the person committing the offense is guilty of

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

31  s. 775.082 or s. 775.083.

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 1123

    Amendment No.    





 1         Section 7.  Section 934.07, Florida Statutes, is

 2  amended to read:

 3         934.07  Authorization for interception of wire, oral,

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

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

 6  authorize an application to a judge of competent jurisdiction

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

 8  934.03-934.09, an order authorizing or approving the

 9  interception of wire, oral, or electronic communications by

10  the Department of Law Enforcement or any law enforcement

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

12  investigation of the offense as to which the application is

13  made when such interception may provide or has provided

14  evidence of the commission of the offense of murder,

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

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

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

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

19  chapter 895; any violation of chapter 896; any violation of

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

21  827.071; any violation of s. 944.40; or any conspiracy to

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

23  crimes specifically enumerated above.

24         Section 8.  Paragraph (b) of subsection (1) and

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

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

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

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

29  to that section, to read:

30         934.09  Procedure for interception of wire, oral, or

31  electronic communications.--

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 1123

    Amendment No.    





 1         (1)  Each application for an order authorizing or

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

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

 4  upon oath or affirmation to a judge of competent jurisdiction

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

 6  application.  Each application shall include the following

 7  information:

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

 9  circumstances relied upon by the applicant to justify his or

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

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

12  is being, or is about to be committed.

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

14  particular description of the nature and location of the

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

16  are to be intercepted.

17         3.  A particular description of the type of

18  communications sought to be intercepted.

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

20  the offense and whose communications are to be intercepted.

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

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

23  approving interception of wire, oral, or electronic

24  communications within the territorial jurisdiction of the

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

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

27  mobile interception device authorized by the judge within such

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

29  facts submitted by the applicant that:

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

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

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                                                  SENATE AMENDMENT

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

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

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

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

 5  used by such person.

 6         (7)  Notwithstanding any other provision of this

 7  chapter, any investigative or law enforcement officer

 8  specially designated by the Governor, the Attorney General,

 9  the statewide prosecutor, or a state attorney acting under

10  this chapter, who reasonably determines that:

11         (a)  An emergency exists that:

12         1.  Involves immediate danger of death or serious

13  physical injury to any person or the danger of escape of a

14  prisoner; and

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

16  communication be intercepted before an order authorizing such

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

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

19  entered under this chapter to authorize such interception

20

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

22  an application for an order approving the interception is made

23  in accordance with this section within 48 hours after the

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

25  of an order, such interception shall immediately terminate

26  when the communication sought is obtained or when the

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

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

29  in which the interception is terminated without an order

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

31  electronic communication intercepted shall be treated as

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 1123

    Amendment No.    





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

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

 3  on the person named in the application.

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

 5  electronic communication intercepted by any means authorized

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

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

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

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

10  the recording from editing or other alterations.  Immediately

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

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

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

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

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

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

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

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

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

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

21  subsection, or a satisfactory explanation for the absence

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

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

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

25  federal law.

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

27  934.03-934.09 shall be sealed by the judge. Custody of the

28  applications and orders shall be wherever the judge directs.

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

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

31  of competent jurisdiction and shall not be destroyed except on

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 1123

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

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

 3  years.

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

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

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

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

 8  extensions thereof, the issuing or denying judge shall cause

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

10  application, and such other parties to intercepted

11  communications as the judge may determine in his or her

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

13  which shall include notice of:

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

15  application.

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

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

18  application.

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

20  electronic communications were or were not intercepted.

21

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

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

24  portions of the intercepted communications, applications, and

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

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

27  competent jurisdiction, the serving of the inventory required

28  by this paragraph may be postponed.

29         (9)(8)  As required by federal law, the contents of any

30  intercepted wire, oral, or electronic communication or

31  evidence derived therefrom shall not be received in evidence

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                                                  SENATE AMENDMENT

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

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

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

 4  of the court order and accompanying application under which

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

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

 7  was not possible to furnish the party with the above

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

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

10  receiving such information.

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

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

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

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

15  electronic communication, or evidence derived therefrom, on

16  the grounds that:

17         1.  The communication was unlawfully intercepted;

18         2.  The order of authorization or approval under which

19  it was intercepted is insufficient on its face; or

20         3.  The interception was not made in conformity with

21  the order of authorization or approval.

22

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

24  proceeding unless there was no opportunity to make such motion

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

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

27  oral communication, or evidence derived therefrom, shall be

28  treated as having been obtained in violation of ss.

29  934.03-934.09.  The judge, upon the filing of such motion by

30  the aggrieved person, may make available to the aggrieved

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

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                                                  SENATE AMENDMENT

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    Amendment No.    





 1  the intercepted communication or evidence derived therefrom as

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

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

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

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

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

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

 8  denying such application that the appeal is not taken for

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

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

11  prosecuted.

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

13  934.03-934.10 with respect to the interception of electronic

14  communications are the only judicial remedies and sanctions

15  for violations of those sections involving such

16  communications.

17         (11)(10)  The requirements of subparagraph (1)(b)2. and

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

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

20  is to be intercepted do not apply if:

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

22  interception of an oral communication:

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

24  enforcement agency and is approved by the Governor, the

25  Attorney General, the statewide prosecutor, or a state

26  attorney.

27         2.  The application contains a full and complete

28  statement as to why such specification is not practical and

29  identifies the person committing the offense and whose

30  communications are to be intercepted.

31         3.  The judge finds that such specification is not

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 1  practical.

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

 3  wire or electronic communication:

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

 5  enforcement agency and is approved by the Governor, the

 6  Attorney General, the statewide prosecutor, or a state

 7  attorney.

 8         2.  The application identifies the person believed to

 9  be committing the offense and whose communications are to be

10  intercepted and the applicant makes a showing that there is

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

12  the effect of thwarting interception from a specified facility

13  of a purpose, on the part of that person, to thwart

14  interception by changing facilities.

15         3.  The judge finds that such showing purpose has been

16  adequately made shown.

17         4.  The order authorizing or approving the interception

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

19  reasonable to presume that the person identified in the

20  application is or was reasonably proximate to the instrument

21  through which such communication will be or was transmitted.

22         (12)(11)  If an interception of a communication is to

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

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

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

26  ascertained by the person implementing the interception order.

27  A provider of wire or electronic communications service that

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

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

30  the ground that the interception cannot be performed in a

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

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    Amendment No.    





 1  state, shall decide such a petition expeditiously.

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

 3  Statutes, is amended to read:

 4         934.10  Civil remedies.--

 5         (2)  A good faith reliance on:

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

 7  authorization as provided in ss. 934.03-934.09, or

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

 9  officer under s. 934.09(7), or

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

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

12  permitted the conduct complained of

13

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

15  or administrative action arising out of such conduct under the

16  laws of this state.

17         Section 10.  Subsections (4) and (5) of section 934.23,

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

19  added to that section, to read:

20         934.23  Requirements for governmental access.--

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

22  of electronic communication service or remote computing

23  service may disclose a record or other information pertaining

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

25  contents of communication covered by subsection (1) or

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

27  law enforcement officer.

28         (b)  A provider of electronic communication service or

29  remote computing service shall disclose a record or other

30  information pertaining to a subscriber to or customer of such

31  service, not including the contents of communications covered

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 1123

    Amendment No.    





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

 2  law enforcement officer only when the investigative or law

 3  enforcement officer:

 4         1.  Uses a subpoena;

 5         1.2.  Obtains a warrant issued by the judge of a court

 6  of competent jurisdiction;

 7         2.3.  Obtains a court order for such disclosure under

 8  subsection (5); or

 9         3.4.  Has the consent of the subscriber or customer to

10  such disclosure.

11         (c)  A provider of electronic communication service or

12  remote computing service shall disclose to an investigative or

13  law enforcement officer the name, address, telephone toll

14  billing records, telephone number or other subscriber number

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

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

17  customer used when the governmental entity uses a subpoena.

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

19  receives records or information under this subsection is not

20  required to provide notice to a subscriber or customer.

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

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

23  investigative or law enforcement officer offers specific and

24  articulable facts showing that there are reasonable grounds

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

26  or electronic communication or the records of other

27  information sought are relevant and material to an ongoing

28  criminal investigation to a legitimate law enforcement

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

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

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

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 1123

    Amendment No.    





 1  provider if the information or records requested are unusually

 2  voluminous in nature or compliance with such order otherwise

 3  would cause an undue burden on such provider.

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

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

 6  investigative or law enforcement officer, shall take all

 7  necessary steps to preserve records and other evidence in its

 8  possession pending the issuance of a court order or other

 9  process.

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

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

12  an additional 90 days upon a renewed request by an

13  investigative or law enforcement officer.

14         (8)  A provider of electronic communication service, a

15  remote computing service, or any other person who furnished

16  assistance pursuant to this section shall be held harmless

17  from any claim and civil liability resulting from the

18  disclosure of information pursuant to this section and shall

19  be reasonably compensated for reasonable expenses incurred in

20  providing such assistance.

21         Section 11.  Subsection (4) of section 934.27, Florida

22  Statutes, is amended to read:

23         934.27  Civil action:  relief; damages; defenses.--

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

25  complete defense to any civil or criminal action brought under

26  ss. 934.21-934.28:

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

28  statutory authorization.

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

30  officer under s. 934.09(7).

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

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 1123

    Amendment No.    





 1  permitted the conduct complained of.

 2         Section 12.  Present subsection (3) of section 934.31,

 3  Florida Statutes, is renumbered as subsection (5), and new

 4  subsections (3) and (4) are added to that section, to read:

 5         934.31  General prohibition on pen register and trap

 6  and trace device use; exception.--

 7         (3)  An investigative or law enforcement officer

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

 9  934.31-934.34 shall use technology reasonably available to him

10  or her which restricts the recording or decoding of electronic

11  or other impulses to the dialing and signaling information

12  used in call processing.

13         (4)(a)  Notwithstanding any other provision of this

14  chapter, any investigative or law enforcement officer

15  specially designated by the Governor, the Attorney General,

16  the statewide prosecutor, or a state attorney acting pursuant

17  to this chapter, who reasonably determines that:

18         1.  An emergency exists which:

19         a.  Involves immediate danger of death or serious

20  physical injury to any person or the danger of escape of a

21  prisoner; and

22         b.  Requires the installation and use of a pen register

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

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

25         2.  There are grounds upon which an order could be

26  entered under this chapter to authorize such installation and

27  use,

28

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

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

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

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 1123

    Amendment No.    





 1  is issued in accordance with s. 934.33.

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

 3  shall immediately terminate when the information sought is

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

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

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

 7         (c)  The knowing installation or use by any

 8  investigative or law enforcement officer of a pen register or

 9  trap and trace device pursuant to paragraph (a) without

10  application for the authorizing order within 48 hours after

11  the installation constitutes a violation of s. 934.31.

12         (d)  A provider of wire or electronic service,

13  landlord, custodian, or other person who has furnished

14  facilities or technical assistance pursuant to this subsection

15  shall be held harmless from any claims and civil liability

16  resulting from the disclosure of information pursuant to this

17  subsection and shall be reasonably compensated for reasonable

18  expenses incurred in providing such facilities and assistance.

19         Section 13.  Subsection (2) of section 934.34, Florida

20  Statutes, is amended to read:

21         934.34  Assistance in installation and use of a pen

22  register or a trap and trace device.--

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

24  934.32(1), a provider of a wire or electronic communication

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

26  trap and trace device forthwith on the appropriate line and

27  shall furnish such investigative or law enforcement officer or

28  other applicant all additional information, facilities, and

29  technical assistance, including installation and operation of

30  the device unobtrusively and with a minimum of interference

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

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 1123

    Amendment No.    





 1  accords the party with respect to whom the installation and

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

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

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

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

 6  934.33(2)(b) or s. 934.31(4), to an officer of the law

 7  enforcement agency designated in the court order at reasonable

 8  intervals during regular business hours for the duration of

 9  the order. The obligation of a provider of electronic

10  communication service under such an order or under such

11  emergency pen register or trap and trace device installation

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

13  trace, or providing other assistance to support the

14  investigation as may be specified in the order.

15         Section 14.  This act shall take effect October 1,

16  2000.

17

18

19  ================ T I T L E   A M E N D M E N T ===============

20  And the title is amended as follows:

21         On page 5, lines 3-6, delete those lines

22

23  and insert:

24         circumstances; amending s. 934.02, F.S.;

25         redefining the terms "wire communication,"

26         "electronic, mechanical, or other device," and

27         "electronic communication"; amending s. 934.03,

28         F.S.; prohibiting certain disclosure or

29         attempted disclosure of intercepted

30         communications; providing penalties; revising

31         limited authorization for certain personnel to

                                  21
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                                                  SENATE AMENDMENT

    Bill No. CS/HB 1123

    Amendment No.    





 1         intercept and record specified incoming wire

 2         communications; amending s. 934.07, F.S.;

 3         deleting prostitution as an offense for which

 4         interception of communications may be

 5         authorized; amending s. 934.09, F.S.; providing

 6         for emergency interception of certain

 7         communications; providing exemptions from

 8         requirements for specification of facilities

 9         for certain interceptions; amending s. 934.10,

10         F.S.; providing additional defense to civil

11         liability; amending s. 934.23, F.S.; requiring

12         a provider of electronic or remote computer

13         service to provide certain information when

14         subpoenaed; revising grounds for issuance of a

15         court order for disclosure; requiring

16         preservation of records; providing immunity

17         from civil liability; providing for

18         compensation; amending s. 934.27, F.S.;

19         providing additional grounds for immunity from

20         civil liability; amending s. 934.31, F.S.;

21         requiring certain technology to be used in

22         installation of pen registers and trap and

23         trace devices; amending s. 934.34, F.S.;

24         revising conditions under which assistance in

25         installing or using pen registers or trap and

26         trace devices must be provided; providing for

27         emergency pen register and trap and trace

28         device installation; providing an

29

30

31

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