CODING: Words stricken are deletions; words underlined are additions.
HOUSE AMENDMENT
Bill No. CS for CS for SB 1334, 2nd Eng.
Amendment No. 01 (for drafter's use only)
CHAMBER ACTION
Senate House
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5 ORIGINAL STAMP BELOW
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11 Representative(s) Merchant offered the following:
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13 Amendment (with title amendment)
14 On page 9, lines 1 through 2
15 remove from the bill: all of said lines
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17 and insert in lieu thereof:
18 Section 11. Subsections (1) through (13) of section
19 847.001, Florida Statutes, are renumbered as subsections (2)
20 through (14), respectively, present subsections (1), (11) and
21 (13) are amended, and a new subsection (1) is added to said
22 section to read:
23 847.001 Definitions.--When used in this chapter:
24 (1) "Child pornography" means any image depicting, or
25 intending to depict, a minor engaged in sexual conduct as
26 defined in subsection (12). An image of a mother's
27 breastfeeding of her baby does not under any circumstance
28 constitute "child pornography."
29 (2)(1) "Computer" means an electronic, magnetic,
30 optical, electrochemical, or other high-speed data processing
31 device or system performing logical, arithmetic, or storage
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hjj0005 01:07 pm 01334-0083-170533
HOUSE AMENDMENT
Bill No. CS for CS for SB 1334, 2nd Eng.
Amendment No. 01 (for drafter's use only)
1 functions and includes any data storage facility or
2 communications facility directly related to or operating in
3 conjunction with such device. The term also includes: any
4 on-line service, Internet service, or local bulletin board;
5 any electronic storage device, including a floppy disk or
6 other magnetic storage device; or any compact disc that has
7 read-only memory and the capacity to store audio, video, or
8 written materials.
9 (12)(11) "Sexual conduct" means actual or simulated
10 sexual intercourse, deviate sexual intercourse, sexual
11 bestiality, masturbation, or sadomasochistic abuse; actual
12 lewd exhibition of the genitals; actual physical contact with
13 a person's clothed or unclothed genitals, pubic area,
14 buttocks, or, if such person is a female, breast, with the
15 intent to arouse or gratify the sexual desire of either party;
16 or any act or conduct which constitutes sexual battery or
17 simulates that sexual battery is being or will be committed.
18 A mother's breastfeeding of her baby does not under any
19 circumstance constitute "sexual conduct."
20 (14)(13) "Simulated" means the explicit depiction of
21 conduct described in subsection (12) (11) which creates the
22 appearance of such conduct and which exhibits any uncovered
23 portion of the breasts, genitals, or buttocks.
24 Section 12. Section 847.0135, Florida Statutes, is
25 amended to read:
26 847.0135 Computer pornography; penalties.--
27 (1) SHORT TITLE.--This section shall be known and may
28 be cited as the "Computer Pornography and Child Exploitation
29 Prevention Act of 1986."
30 (2) COMPUTER PORNOGRAPHY.--A person who:
31 (a) Knowingly compiles, enters into, or transmits by
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HOUSE AMENDMENT
Bill No. CS for CS for SB 1334, 2nd Eng.
Amendment No. 01 (for drafter's use only)
1 means of computer;
2 (b) Makes, prints, publishes, or reproduces by other
3 computerized means;
4 (c) Knowingly causes or allows to be entered into or
5 transmitted by means of computer; or
6 (d) Buys, sells, receives, exchanges, or disseminates,
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8 any notice, statement, or advertisement of, or any minor's
9 name, telephone number, place of residence, physical
10 characteristics, or other descriptive or identifying
11 information, for purposes of facilitating, encouraging,
12 offering, or soliciting sexual conduct of or with any minor,
13 or the visual depiction of such conduct, commits a felony of
14 the third degree, punishable as provided in s. 775.082, s.
15 775.083, or s. 775.084. The fact that an undercover operative
16 or law enforcement officer was involved in the detection and
17 investigation of an offense under this section shall not
18 constitute a defense to a prosecution under this section. Any
19 person who violates the provisions of this subsection commits
20 a felony of the third degree, punishable as provided for in s.
21 775.082, s. 775.083, or s. 775.084.
22 (3) CERTAIN USES OF COMPUTER SERVICES PROHIBITED.--Any
23 person who knowingly utilizes a computer on-line service,
24 Internet service, or local bulletin board service to seduce,
25 solicit, lure, or entice, or attempt to seduce, solicit, lure,
26 or entice, a child or another person believed by the person to
27 be a child, to commit any illegal act described in chapter
28 794, relating to sexual battery; chapter 800, relating to
29 lewdness and indecent exposure; or chapter 827, relating to
30 child abuse, commits a felony of the third degree, punishable
31 as provided in s. 775.082, s. 775.083, or s. 775.084.
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HOUSE AMENDMENT
Bill No. CS for CS for SB 1334, 2nd Eng.
Amendment No. 01 (for drafter's use only)
1 (4) OWNERS OR OPERATORS OF COMPUTER SERVICES
2 LIABLE.--It is unlawful for any owner or operator of a
3 computer on-line service, Internet service, or local bulletin
4 board service knowingly to permit a subscriber to utilize the
5 service to commit a violation of this section. Any person who
6 violates this section commits a misdemeanor of the first
7 degree, punishable by a fine not exceeding $2,000.
8 (5) MANDATORY REPORTING REQUIREMENTS.--Any person,
9 including, but not limited to, any computer repair technician,
10 computer system administrator, or Internet service provider,
11 who comes to know or to have reason to believe, while in the
12 course of modifying, updating, or repair ng, maintaining, or
13 servicing, that:
14 (a) a computer, as defined in s. 847.001(2);
15 (b) a computer program, as defined in s. 815.03(2);
16 (c) computer software, as defined in s. 815.03(4);
17 (d) a computer system, as defined in s. 815.03(5); or
18 (e) a computer network, as defined in s. 815.03(6)
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20 contains images of child pornography, as defined in s.
21 847.001, or evidence of violations of subsection (2) or
22 subsection (3), shall immediately report such knowledge or
23 belief to the Florida Department of Law Enforcement. Any
24 person who fails to make a required report commits a
25 misdemeanor of the second degree, punishable as provided in s.
26 775.082 or s. 775.083. No person shall be held civilly liable
27 for making disclosures required by this subsection in good
28 faith to the Florida Department of Law Enforcement. Any person
29 who knowingly and willfully makes a false report under this
30 subsection commits a felony of the third degree, punishable as
31 provided in s. 775.082, s. 775.083, or s. 775.084. The Florida
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HOUSE AMENDMENT
Bill No. CS for CS for SB 1334, 2nd Eng.
Amendment No. 01 (for drafter's use only)
1 Department of Law Enforcement shall promulgate rules pursuant
2 to ss. 120.54 and 120.536(1) necessary to catalog and document
3 reports of information pursuant to this subsection.
4 (6) SEARCHES AND SEIZURES BY LAW ENFORCEMENT OFFICERS
5 AND EMPLOYEES IN CONNECTION WITH INVESTIGATION OR
6 PROSECUTION--Notwithstanding any other law, it shall be
7 unlawful for a government officer or employee, in connection
8 with the investigation or prosecution of a criminal offense
9 under this section, to search for or seize any materials
10 reasonably believed to be possessed by a person for the lawful
11 purpose of disseminating to the public, a newspaper, book,
12 broadcast, or other similar form of public communication, but
13 this provision shall not impair or affect the ability of any
14 government officer of employee, if:
15 (a) The materials in question constitute child
16 pornography or are obscene; or
17 (b) There is probable cause to believe that a person
18 possessing such materials has committed or is committing a
19 criminal offense and the materials are evidence of said
20 offense; or
21 (c) There is reason to believe that the immediate
22 seizure of such materials is necessary to prevent the death
23 of, or serious injury to, a human being; or
24 (d) There is a reason to believe that the giving of
25 notice pursuant to a subpoena duces tecum would result in the
26 destruction, alteration, or concealment of such materials; or
27 (e) Such materials have not been produced in response
28 to a court order directing compliance with a subpoena duces
29 tecum, and
30 1. All appellate remedies have been exhausted; or
31 2. There is reason to believe that the delay in an
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HOUSE AMENDMENT
Bill No. CS for CS for SB 1334, 2nd Eng.
Amendment No. 01 (for drafter's use only)
1 investigation or trial occasioned by further proceedings
2 relating to the subpoena would threaten the interests of
3 justice.
4 (7) ACTIONS ARISING UNDER THIS SECTION--
5 (a) The sole and exclusive right of action for the
6 willful and knowing failure to make a report pursuant to the
7 requirements of this section is a criminal prosecution
8 pursuant to subsection (5).
9 (b) A person aggrieved by a search for or seizure of
10 materials in violation of subsection (6) of this section shall
11 have a civil cause of action for damages for such search for
12 or seizure against:
13 1. Any governmental unit, which shall be liable for
14 violations of this section by their officers or employees
15 while acting within the scope or under color of their office
16 or employment; and
17 2. Against an officer or employee of a governmental
18 unit who has violated this section while acting within the
19 scope or under color of his office or employment.
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21 The remedy provided in this paragraph is exclusive of any
22 other civil action or proceeding for conduct constituting a
23 violation of this section, against the officer or employee
24 whose violation gave rise to the claim, against the estate of
25 such officer or employee, or against the governmental unit
26 employing such officer or employee.
27 (c) It shall be a complete defense to a civil action
28 brought under paragraph (b) of this subsection that the
29 officer or employee had a reasonable good faith belief in the
30 lawfulness of his or her conduct.
31 (d) A governmental unit liable for violations of this
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HOUSE AMENDMENT
Bill No. CS for CS for SB 1334, 2nd Eng.
Amendment No. 01 (for drafter's use only)
1 section may not assert as a defense to a claim arising under
2 this section the immunity of the officer or employee whose
3 violation is complained of or his or her reasonably-good faith
4 belief in the lawfulness of his or her conduct, except that
5 such a defense may be asserted if the violation complained of
6 is that of a judicial officer.
7 (e) Evidence otherwise admissible in a proceeding
8 shall not be excluded on the basis of a violation of this
9 section.
10 (f) A person having a cause of action under this
11 subsection shall be entitled to recover actual damages but not
12 less than liquidated damages of $1,000, and such reasonable
13 attorneys' fees and other litigation costs reasonably incurred
14 as the court, in its discretion, may award, however there
15 shall be no liability for interest prior to judgment.
16 (g) The Florida Department of Law Enforcement, in
17 cooperation with the Office of the Statewide Prosecutor, shall
18 publish recommended regulations and procedures for the
19 investigation and prosecution of offenses arising under this
20 section.
21 (7)(5) STATE CRIMINAL JURISDICTION.--A person is
22 subject to prosecution in this state pursuant to chapter 910
23 for any conduct proscribed by this section which the person
24 engages in, while either within or outside this state, if by
25 such conduct the person commits a violation of this section
26 involving a child residing in this state, or another person
27 believed by the person to be a child residing in this state.
28 Section 13. This act shall take effect October 1,
29 2000.
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HOUSE AMENDMENT
Bill No. CS for CS for SB 1334, 2nd Eng.
Amendment No. 01 (for drafter's use only)
1 ================ T I T L E A M E N D M E N T ===============
2 And the title is amended as follows:
3 On page 1, line 27
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5 after the word "rules;" insert:
6 amending s. 847.001, F.S.; defining "child
7 pornography"; amending definition of computer;
8 amending definition of "sexual conduct";
9 conforming a cross reference; amending s.
10 847.0135, F.S.; requiring any person who comes
11 to know or to believe, while in the course of
12 modifying, updating, repairing, maintaining, or
13 servicing, that a computer, a computer program,
14 computer software, a computer system, or a
15 computer network, contains images of child
16 pornography or evidence of violations of
17 certain provisions of the "Computer Pornography
18 and Child Exploitation Prevention Act of 1986,"
19 to report such knowledge or belief to the
20 Florida Department of Law Enforcement;
21 providing a penalty for failure to make such
22 report; providing immunity from civil liability
23 for persons making disclosures in compliance
24 with the act; providing a penalty for making a
25 false report; requiring the Florida Department
26 of Law Enforcement to promulgate rules;
27 relating to documenting reports; limiting
28 searches and seizures by law enforcement
29 officers and government employees in connection
30 with investigation or prosecution; providing
31 actions and remedies pursuant to a violation of
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HOUSE AMENDMENT
Bill No. CS for CS for SB 1334, 2nd Eng.
Amendment No. 01 (for drafter's use only)
1 this act; requiring the Florida Department of
2 Law Enforcement, in cooperation with the Office
3 of the Statewide Prosecutor, to publish
4 recommended regulations and procedures for
5 investigation and prosecution of offenses
6 arising under this act; providing an effective
7 date.
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