Senate Bill sb2028e1

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    CS for SB 2028                           First Engrossed (ntc)



  1                      A bill to be entitled

  2         An act relating to production of certain

  3         records and other productions as a result of a

  4         subpoena, order, or warrant; creating s.

  5         92.605, F.S.; defining terms; providing an

  6         exemption; providing requirements for

  7         production of records by an out-of-state

  8         corporation upon issuance of a subpoena, court

  9         order, or search warrant pertaining to such

10         records; providing requirements for

11         out-of-state corporations seeking to quash a

12         subpoena or warrant; requiring out-of-state

13         corporations to verify the authenticity of

14         records such corporations are required to

15         produce; providing requirements for the

16         production of certain records by certain

17         Florida corporations; providing that a cause of

18         action does not arise against any out-of-state

19         or Florida corporation or other specified

20         persons for production of certain records,

21         information, facilities, or assistance;

22         providing an effective date.

23  

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

25  

26         Section 1.  Section 92.605, Florida Statutes, is

27  created to read:

28         92.605  Production of certain records by Florida

29  corporations and out-of-state corporations.

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

31  


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    CS for SB 2028                           First Engrossed (ntc)



  1         (a)  "Adverse result" includes one of the following

  2  consequences to notification of the existence of a court

  3  order, a subpoena, or a search warrant:

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

  5  individual.

  6         2.  A flight from prosecution.

  7         3.  The destruction of or tampering with evidence.

  8         4.  The intimidation of potential witnesses.

  9         5.  Serious jeopardy to an investigation or undue delay

10  of a trial.

11         (b)  "Applicant" means a law enforcement officer who is

12  seeking a court order or subpoena under s. 16.56, s. 27.04, s.

13  905.185, or s. 914.04 or who is issued a search warrant under

14  s. 933.01, or anyone who is authorized to issue a subpoena

15  under Rule 3.220, Florida Rules of Criminal Procedure.

16         (c)  "Business" means any business, institution,

17  association, profession, occupation, or calling of any kind,

18  whether or not conducted for profit.

19         (d)  "Electronic communication services" and "remote

20  computing services" have the same meaning as provided in the

21  Electronic Communications Privacy Act in Chapter 121

22  (commencing with Section 2701) of Part I of Title 18 of the

23  United States Code Annotated. This section does not apply to

24  corporations that do not provide those services to the public.

25         (e)  "Florida corporation" means any corporation or

26  other entity that is regulated under ch. 607, excluding

27  out-of-state corporations.

28         (f)  "Out-of-state corporation" means any corporation

29  that is qualified to do business in this state under s.

30  607.1501.

31  


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    CS for SB 2028                           First Engrossed (ntc)



  1         (g)  "Out-of-state record of regularly conducted

  2  business activity" means a memorandum, report, record, or data

  3  compilation, in any form, of acts, events, conditions,

  4  opinions, or diagnoses, maintained in another state or

  5  country.

  6         (h)  "Out-of-state certification" means a written

  7  declaration made and signed in another state or country by the

  8  custodian of an out-of-state record of regularly conducted

  9  business activity or another qualified person that, if falsely

10  made, would subject the maker to criminal penalty under the

11  laws of another state or country.

12         (i)  "Properly served" means delivery by hand or in a

13  manner reasonably allowing for proof of delivery if delivered

14  by United States mail, overnight-delivery service, or

15  facsimile to a person or entity properly registered to do

16  business in the state.

17         (2)  The following provisions apply to any subpoena,

18  court order, or search warrant, issued in compliance with the

19  Electronic Communications Privacy Act in chapter 121

20  (commencing with s. 2701) of Part I of Title 18 of the United

21  States Code; and that is subject to this chapter which allows

22  a search for records that are in the actual or constructive

23  possession of an out-of-state corporation that provides

24  electronic communication services or remote computing services

25  to the public, when those records would reveal the identity of

26  the customers using those services; data stored by, or on

27  behalf of, the customers; the customers' usage of those

28  services; the recipients or destinations of communications

29  sent to or from those customers.

30         (a)  When properly served with a subpoena, court order,

31  or search warrant issued by a Florida court, an out-of-state


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    CS for SB 2028                           First Engrossed (ntc)



  1  corporation subject to this section shall provide to the

  2  applicant all records sought pursuant to that subpoena, court

  3  order, or warrant within 10 business days after receipt, or

  4  the date indicated within the subpoena, if later, including

  5  those records maintained or located outside this state.

  6         (b)  When the applicant makes a showing and the court

  7  finds that failure to produce records within 10 business days

  8  would cause an adverse result, the subpoena, court order, or

  9  warrant may require production of records within less than 10

10  business days. A court may reasonably extend the time required

11  for production of the records upon finding that the

12  out-of-state corporation has shown good cause for that

13  extension and that an extension of time would not cause an

14  adverse result.

15         (c)  An out-of-state corporation seeking to quash the

16  subpoena, court order, or warrant must seek relief from the

17  court issuing it within the time required for production of

18  records under this section. The issuing court shall hear and

19  decide that motion within 5 court days after the motion is

20  filed.

21         (d)  The out-of-state corporation shall verify the

22  authenticity of records that it produces by providing an

23  affidavit that complies with the requirements set forth in

24  this section. Records produced in compliance with this section

25  are admissible in evidence as set forth in subsection (5).

26         (3)  A Florida corporation that provides electronic

27  communication services or remote computing services to the

28  public, when served with a subpoena, court order, or warrant

29  issued by another state to produce records that would reveal

30  the identity of the customers using those services; data

31  stored by, or on behalf of, the customers; the customers'


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    CS for SB 2028                           First Engrossed (ntc)



  1  usage of those services; or the recipients or destinations of

  2  communications sent to or from those customers shall produce

  3  those records as if that subpoena, court order, or warrant had

  4  been issued by a Florida court.

  5         (4)  A cause of action does not arise against any

  6  out-of-state or Florida corporation subject to this section,

  7  or its officers, employees, agents, or other specified

  8  persons, for providing records, information, facilities, or

  9  assistance in accordance with the terms of a subpoena, court

10  order, or warrant subject to this section.

11         (5)  In a criminal proceeding in a court of the State

12  of Florida, an out-of-state record of regularly conducted

13  business activity, or a copy of such record, shall not be

14  excluded as evidence by the hearsay rule if an out-of-state

15  certification attests that:

16         (a)  Such record was made at or near the time of the

17  occurrence of the matters set forth by, or from information

18  transmitted by, a person with knowledge of those matters;

19         (b)  Such record was kept in the course of a regularly

20  conducted business activity;

21         (c)  The business activity made such a record as a

22  regular practice; and

23         (d)  If such record is not the original, it is a

24  duplicate of the original;

25  

26  unless the source of information or the method or

27  circumstances of preparation indicate lack of trustworthiness.

28         (6)  An out-of-state certification under this section

29  shall authenticate such record or duplicate.

30         (7)  No evidence in such records in the form of opinion

31  or diagnosis is admissible under subsection (5) unless such


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    CS for SB 2028                           First Engrossed (ntc)



  1  opinion or diagnosis would be admissible under ss.

  2  90.701-90.705 if the person whose opinion is recorded were to

  3  testify to the opinion directly.

  4         (8)  At the arraignment or as soon after the

  5  arraignment as practicable, or 60 days prior to trial, a party

  6  intending to offer in evidence under this section an

  7  out-of-state record of regularly conducted business activity

  8  shall provide written notice of that intention to each other

  9  party. A motion opposing admission in evidence of such record

10  shall be made by the opposing party and determined by the

11  court before trial.  Failure by a party to file such motion

12  before trial shall constitute a waiver of objection to such

13  record or duplicate, but the court for cause shown may grant

14  relief from the waiver.

15         (9)  In any criminal case, the content of any

16  electronic communication may be obtained under this section

17  only by court order or by the issuance of a search warrant.

18         Section 2.  This act shall take effect upon becoming a

19  law.

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