Senate Bill sb1774

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    Florida Senate - 2002                                  SB 1774

    By Senator Smith





    5-1350A-02

  1                      A bill to be entitled

  2         An act relating to the interception of

  3         communications; amending s. 934.02, F.S.;

  4         revising definitions; including wire

  5         communications within the meaning of an

  6         electronic communications system; redefining

  7         the terms "pen register" and "trap and trace

  8         device"; defining the terms "foreign

  9         intelligence information," "protected

10         computer," and "computer trespasser"; amending

11         s. 934.03, F.S.; authorizing the interception

12         of certain wire or electronic communications of

13         a computer trespasser; amending s. 934.07,

14         F.S.; authorizing the Department of Law

15         Enforcement to intercept wire, oral, or

16         electronic communications for purposes of

17         investigating certain additional offenses

18         concerning terrorism and the attempted or

19         threatened use of a destructive device or

20         weapon of mass destruction; requiring a law

21         enforcement agency to notify the Department of

22         Law Enforcement if an intercepted communication

23         provides evidence of certain acts of terrorism;

24         amending s. 934.09, F.S.; providing for the

25         interception of communications upon certain

26         findings of activities that threaten the

27         security of the nation or state; specifying

28         circumstances under which the court may

29         authorize the interception of communications

30         outside the court's jurisdiction; amending s.

31         934.08, F.S.; authorizing the disclosure of the

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  1         contents of an intercepted communication to

  2         certain state and federal officials; amending

  3         s. 934.22, F.S.; prohibiting a provider of

  4         electronic communication service or a provider

  5         of remote computing service from disclosing the

  6         contents of communications or information

  7         pertaining to a subscriber or customer;

  8         specifying certain exceptions; amending s.

  9         934.23, F.S.; providing for disclosure of

10         information pertaining to a subscriber or

11         customer under specified circumstances and

12         pursuant to a warrant; amending s. 934.27,

13         F.S.; providing that a request of an

14         investigative or law enforcement officer to

15         preserve records is a defense with respect to a

16         civil or criminal action concerning unlawful

17         access to communications; amending s. 934.31,

18         F.S.; prohibiting the recording of the contents

19         of communications by the use of a pen register

20         or trap and trace device; amending s. 934.33,

21         F.S.; requiring that a certification of an

22         order for a pen register or a trap and trace

23         device be provided to any person or entity not

24         specifically named in the order; requiring that

25         the order include information concerning

26         location of the device and geographic limits of

27         the order; requiring an investigative or law

28         enforcement agency to maintain a record of the

29         use of a pen register or trap and trace

30         installed pursuant to an ex parte order;

31         requiring that the record be provided to the

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  1         court; amending s. 934.34, F.S.; providing for

  2         a trap and trace device to be installed on

  3         other facilities; providing an effective date.

  4

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

  6

  7         Section 1.  Subsections (1), (8), (14), (20), and (21)

  8  of section 934.02, Florida Statutes, are amended, and

  9  subsections (24), (25), and (26) are added to that section, to

10  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.

23         (8)  "Judge of competent jurisdiction" means justice of

24  the Supreme Court, judge of a district court of appeal,

25  circuit judge, or judge of any court of record having felony

26  jurisdiction of the State of Florida, irrespective of the

27  geographic location or jurisdiction where the judge presides.

28         (14)  "Electronic communications system" means any

29  wire, radio, electromagnetic, photooptical, or photoelectronic

30  facilities for the transmission of wire or electronic

31  communications, and any computer facilities or related

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  1  electronic equipment for the electronic storage of such

  2  communications.

  3         (20)  "Pen register" means a device or process that

  4  which records or decodes dialing, routing, addressing, or

  5  signaling information transmitted by an instrument or facility

  6  from which a wire or electronic communication is transmitted,

  7  but such information does not include the contents of any

  8  communication. The electronic or other impulses which identify

  9  the numbers dialed or otherwise transmitted on the telephone

10  line to which such device is attached, but such term does not

11  include any device or process used by a provider or customer

12  of a wire or electronic communication service for billing or

13  recording as an incident to billing or, for communication

14  services provided by such provider, and does not include or

15  any device or process used by a provider or customer of a wire

16  communication service for cost accounting or other like

17  purposes in the ordinary course of its business.

18         (21)  "Trap and trace device" means a device or process

19  that which captures the incoming electronic or other impulses

20  that which identify the originating number or other dialing,

21  routing, addressing, or signaling information reasonably

22  likely to identify the source of a wire or electronic

23  communication, but such information does not include the

24  contents of any communication of an instrument or a device

25  from which a wire or electronic communication was transmitted.

26         (24)  "Foreign intelligence information" means

27  information, whether or not concerning a United States person,

28  as that term is defined in 50 U.S.C. s. 1801, which relates

29  to:

30

31

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  1         (a)  The ability of the United States to protect

  2  against actual or potential attack or other grave hostile acts

  3  of a foreign power or an agent of a foreign power;

  4         (b)  Sabotage or international terrorism by a foreign

  5  power or an agent of a foreign power;

  6         (c)  Clandestine intelligence activities by an

  7  intelligence service, a network of a foreign power, or an

  8  agent of a foreign power; or

  9         (d)  With respect to a foreign power or foreign

10  territory, the national defense or security of the United

11  States or the conduct of the foreign affairs of the United

12  States.

13         (25)  "Protected computer" means:

14         (a)  A computer for the exclusive use of a financial

15  institution or governmental entity;

16         (b)  A computer that is not for the exclusive use of a

17  financial institution or governmental entity, but that is used

18  by or for a financial institution or governmental entity and

19  with respect to which unlawful conduct can affect the use by

20  or for the financial institution or governmental entity; or

21         (c)  A computer that is used in interstate or foreign

22  commerce or communication, including a computer located

23  outside the United States.

24         (26)  "Computer trespasser" means a person who accesses

25  a protected computer without authorization and thus does not

26  have a reasonable expectation of privacy with respect to any

27  communication transmitted to, through, or from the protected

28  computer. The term does not include a person known by the

29  owner or operator of the protected computer to have an

30  existing contractual relationship with the owner or operator

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  1  of the protected computer for access to all or part of the

  2  protected computer.

  3         Section 2.  Paragraph (j) is added to subsection (2) of

  4  section 934.03, Florida Statutes, to read:

  5         934.03  Interception and disclosure of wire, oral, or

  6  electronic communications prohibited.--

  7         (2)

  8         (j)  It is not unlawful under ss. 934.03-934.09 for a

  9  person acting under color of law to intercept the wire or

10  electronic communications of a computer trespasser which are

11  transmitted to, through, or from a protected computer if:

12         1.  The owner or operator of the protected computer

13  authorizes the interception of the communications of the

14  computer trespasser;

15         2.  The person acting under color of law is lawfully

16  engaged in an investigation;

17         3.  The person acting under color of law has reasonable

18  grounds to believe that the contents of the communications of

19  the computer trespasser will be relevant to the investigation;

20  and

21         4.  The interception does not acquire communications

22  other than those transmitted to, through, or from the computer

23  trespasser.

24         Section 3.  Section 934.07, Florida Statutes, as

25  amended by section 1 of chapter 2001-359, Laws of Florida, is

26  amended to read:

27         934.07  Authorization for interception of wire, oral,

28  or electronic communications.--

29         (1)  The Governor, the Attorney General, the statewide

30  prosecutor, or any state attorney may authorize an application

31  to a judge of competent jurisdiction for, and such judge may

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  1  grant in conformity with ss. 934.03-934.09 an order

  2  authorizing or approving the interception of, wire, oral, or

  3  electronic communications by:

  4         (a)  The Department of Law Enforcement or any law

  5  enforcement agency as defined in s. 934.02 having

  6  responsibility for the investigation of the offense as to

  7  which the application is made when such interception may

  8  provide or has provided evidence of the commission of the

  9  offense of murder, kidnapping, aircraft piracy, arson,

10  gambling, robbery, burglary, theft, dealing in stolen

11  property, criminal usury, bribery, or extortion; any felony

12  violation of ss. 790.161-790.166, inclusive; any violation of

13  chapter 893; any violation of the provisions of the Florida

14  Anti-Fencing Act; any violation of chapter 895; any violation

15  of chapter 896; any violation of chapter 815; any violation of

16  chapter 847; any violation of s. 827.071; any violation of s.

17  944.40; or any conspiracy or solicitation to commit any

18  violation of the laws of this state relating to the crimes

19  specifically enumerated in this paragraph.

20         (b)  The Department of Law Enforcement, together with

21  other assisting personnel as authorized and requested by the

22  department under s. 934.09(5), for the investigation of the

23  offense as to which the application is made when such

24  interception may provide or has provided evidence of the

25  commission of any offense that may be an act of terrorism or

26  in furtherance of an act of terrorism or evidence of any

27  conspiracy or solicitation to commit any such violation.

28         (2)(a)  If, during the course of an interception of

29  communications by a law enforcement agency as authorized under

30  paragraph (1)(a), the law enforcement agency finds that the

31  intercepted communications may provide or have provided

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  1  evidence of the commission of any offense that may be an act

  2  of terrorism or in furtherance of an act of terrorism, or

  3  evidence of any conspiracy or solicitation to commit any such

  4  violation, the law enforcement agency shall promptly notify

  5  the Department of Law Enforcement and apprise the department

  6  of the contents of the intercepted communications. The agency

  7  notifying the department may continue its previously

  8  authorized interception with appropriate minimization, as

  9  applicable, and may otherwise assist the department as

10  provided in this section.

11         (b)  Upon its receipt of information of the contents of

12  an intercepted communications from a law enforcement agency,

13  the Department of Law Enforcement shall promptly review the

14  information to determine whether the information relates to an

15  actual or anticipated act of terrorism as defined in this

16  section. If, after reviewing the contents of the intercepted

17  communications, there is probable cause that the contents of

18  the intercepted communications meet the criteria of paragraph

19  (1)(b), the Department of Law Enforcement may make application

20  for the interception of wire, oral, or electronic

21  communications consistent with subsection (1)(b). The

22  department may make an independent new application for

23  interception based on the contents of the intercepted

24  communications. Alternatively, the department may request the

25  law enforcement agency that provided the information to join

26  with the department in seeking an amendment of the original

27  interception order, or may seek additional authority to

28  continue intercepting communications under the direction of

29  the department. In carrying out its duties under this section,

30  the department may use the provisions for an emergency

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  1  interception provided in s. 934.09(7) if applicable under

  2  statutory criteria.

  3         (3)(2)  As used in this section, the term "terrorism"

  4  means an activity that:

  5         (a)1.  Involves a violent act or an act dangerous to

  6  human life which is a violation of the criminal laws of this

  7  state or of the United States; or

  8         2.  Involves a violation of s. 815.06; and

  9         (b)  Is intended to:

10         1.  Intimidate, injure, or coerce a civilian

11  population;

12         2.  Influence the policy of a government by

13  intimidation or coercion; or

14         3.  Affect the conduct of government through

15  destruction of property, assassination, murder, kidnapping, or

16  aircraft piracy.

17         Section 4.  Subsection (7) and paragraph (b) of

18  subsection (11) of section 934.09, Florida Statutes, as

19  amended by section 2 of chapter 2001-359, Laws of Florida, are

20  amended to read:

21         934.09  Procedure for interception of wire, oral, or

22  electronic communications.--

23         (7)  Notwithstanding any other provision of this

24  chapter, any investigative or law enforcement officer

25  specially designated by the Governor, the Attorney General,

26  the statewide prosecutor, or a state attorney acting under

27  this chapter, who reasonably determines that:

28         (a)  An emergency exists that:

29         1.  Involves immediate danger of death or serious

30  physical injury to any person, or the danger of escape of a

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  1  prisoner, or conspiratorial activities threatening the

  2  security interest of the nation or state; and

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

  4  communication be intercepted before an order authorizing such

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

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

  7  entered under this chapter to authorize such interception

  8

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

10  an application for an order approving the interception is made

11  in accordance with this section within 48 hours after the

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

13  of an order, such interception shall immediately terminate

14  when the communication sought is obtained or when the

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

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

17  in which the interception is terminated without an order

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

19  electronic communication intercepted shall be treated as

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

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

22  on the person named in the application.

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

28  wire or electronic 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 identifies the person believed to

  4  be committing the offense and whose communications are to be

  5  intercepted and the applicant makes a showing that there is

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

  7  the effect of thwarting interception from a specified facility

  8  or that the person whose communications are to be intercepted

  9  has removed, or is likely to remove, himself or herself to

10  another judicial circuit within the state.

11         3.  The judge finds that such showing has been

12  adequately made.

13         4.  The order authorizing or approving the interception

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

15  reasonable to presume that the person identified in the

16  application is or was reasonably proximate to the instrument

17  through which such communication will be or was transmitted.

18

19  Consistent with this paragraph, a judge of competent

20  jurisdiction and limited to investigations of acts of

21  terrorism, as that term is defined in s. 934.07, the court may

22  authorize continued interception within this state, whether

23  the interception is both within or and outside the court's its

24  jurisdiction, if the application for the interception makes a

25  showing that some activity or conspiracy believed to be

26  related to, or in furtherance of, the criminal predicate for

27  the requested interception has occurred or will likely occur,

28  in whole or in part, within the jurisdiction of the court

29  where the order is being sought original interception occurred

30  within its jurisdiction.

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  1         Section 5.  Effective July 1, 2004, paragraph (b) of

  2  subsection (11) of section 934.09, Florida Statutes, as

  3  amended by this act and by section 3 of chapter 2001-359, Laws

  4  of Florida, is amended to read:

  5         934.09  Procedure for interception of wire, oral, or

  6  electronic communications.--

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

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

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

10  is to be intercepted do not apply if:

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

12  wire or electronic communication:

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

14  enforcement agency and is approved by the Governor, the

15  Attorney General, the statewide prosecutor, or a state

16  attorney.

17         2.  The application identifies the person believed to

18  be committing the offense and whose communications are to be

19  intercepted and the applicant makes a showing that there is

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

21  the effect of thwarting interception from a specified facility

22  or that the person whose communications are to be intercepted

23  has removed, or is likely to remove, himself or herself to

24  another judicial circuit within the state.

25         3.  The judge finds that such showing has been

26  adequately made.

27         4.  The order authorizing or approving the interception

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

29  reasonable to presume that the person identified in the

30  application is or was reasonably proximate to the instrument

31  through which such communication will be or was transmitted.

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  1

  2  Consistent with this paragraph, a judge of competent

  3  jurisdiction may authorize interception within this state,

  4  whether the interception is within or outside the court's

  5  jurisdiction, if the application for the interception makes a

  6  showing that some activity or conspiracy believed to be

  7  related to, or in furtherance of, the criminal predicate for

  8  the requested interception has occurred or will likely occur,

  9  in whole or in part, within the jurisdiction of the court

10  where the order is being sought.

11         Section 6.  Subsection (6) is added to section 934.08,

12  Florida Statutes, to read:

13         934.08  Authorization for disclosure and use of

14  intercepted wire, oral, or electronic communications.--

15         (6)  Any investigative or law enforcement officer who,

16  by any means authorized by this chapter, obtains knowledge of

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

18  evidence derived from the contents of any wire, oral, or

19  electronic communication may disclose the contents or evidence

20  to any state or federal law enforcement official, state or

21  federal intelligence official, state or federal protective

22  services official, federal immigration official, state or

23  federal defense official, or state or federal security

24  official to the extent that the contents or evidence includes

25  foreign intelligence or counterintelligence, as defined in 50

26  U.S.C. s. 401a, or foreign intelligence information, as

27  defined in this chapter, in order to assist the official who

28  receives that information in performing his or her official

29  duties. Any state or federal official who receives information

30  under this subsection may use that information only as

31  necessary in conducting official duties and is subject to any

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  1  limitations on the unauthorized disclosure of such

  2  information.

  3         Section 7.  Section 934.22, Florida Statutes, is

  4  amended to read:

  5         934.22  Voluntary disclosure of customer communications

  6  or records contents.--

  7         (1)  Except as provided in subsection (2) or subsection

  8  (3):

  9         (a)  A provider of person or entity who provides an

10  electronic communication service to the public may not

11  knowingly divulge to:

12         1.  Any person or entity the contents of a

13  communication while in electronic storage by that service; or.

14         2.  Any governmental entity a record or other

15  information pertaining to a subscriber to or customer of such

16  service.

17         (b)  A provider of person or entity who provides remote

18  computing service to the public may not knowingly divulge to:

19         1.  Any person or entity the contents of any

20  communication that which is carried or maintained on that

21  service:

22         a.1.  On behalf of a subscriber or customer of such

23  service and received by means of electronic transmission from,

24  or created by means of computer processing of communications

25  received by means of electronic transmission from, a

26  subscriber or customer of such remote computing service; and

27  or

28         b.2.  Solely for the purpose of providing storage or

29  computer processing services to its subscriber or customer, if

30  the provider is not authorized to access the contents of any

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  1  such communication for purposes of providing any service other

  2  than storage or computer processing; or.

  3         2.  Any governmental entity a record or other

  4  information pertaining to a subscriber to or customer of such

  5  service.

  6         (2)  A provider described in subsection (1) person or

  7  entity may divulge the contents of a communication:

  8         (a)  To an addressee or intended recipient of such

  9  communication or an agent of such addressee or intended

10  recipient.

11         (b)  As otherwise authorized in s. 934.03(2)(a), s.

12  934.07, or s. 934.23.

13         (c)  With the lawful consent of the originator or an

14  addressee or intended recipient of such communication, or the

15  subscriber in the case of a remote computing service.

16         (d)  To a person employed or authorized, or whose

17  facilities are used, to forward such communication to its

18  destination.

19         (e)  As may be necessarily incident to the rendition of

20  the service or to the protection of the rights or property of

21  the provider of that service.

22         (f)  To a law enforcement agency, if such contents:

23         1.  The contents were inadvertently obtained by the

24  service provider;, and

25         2.  The contents appear to pertain to the commission of

26  a crime; or.

27         3.  The provider reasonably believes an emergency

28  involving immediate danger of death or serious physical injury

29  to another person requires disclosure of the contents without

30  delay.

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  1         (3)(a)  A provider described in subsection (1) may

  2  disclose a record or other information pertaining to a

  3  subscriber to or customer of such service:

  4         1.  As is otherwise authorized in s. 934.23.

  5         2.  With the lawful consent of the customer or

  6  subscriber.

  7         3.  As is necessary incident to rendering service or

  8  protecting the rights or property of the provider of that

  9  service.

10         4.  To a governmental entity if the provider reasonably

11  believes that an emergency involving immediate danger of death

12  or serious physical injury to any person justifies disclosure

13  of the information.

14         5.  To any person other than a governmental entity.

15         (b)  Notwithstanding paragraph (a), a provider may not

16  disclose the contents of communications specified in paragraph

17  (1)(a) or paragraph (1)(b).

18         Section 8.  Section 934.23, Florida Statutes, is

19  amended to read:

20         934.23  Required disclosure of customer communications

21  or records Requirements for governmental access.--

22         (1)  An investigative or law enforcement officer may

23  require the disclosure by a provider of electronic

24  communication service of the contents of a wire or an

25  electronic communication that has been in electronic storage

26  in an electronic communications system for 180 days or less

27  only pursuant to a warrant issued by the judge of a court of

28  competent jurisdiction.  An investigative or law enforcement

29  officer may require the disclosure by a provider of electronic

30  communication services of the contents of a wire or an

31  electronic communication that has been in electronic storage

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  1  in an electronic communications system for more than 180 days

  2  by the means available under subsection (2).

  3         (2)  An investigative or law enforcement officer may

  4  require a provider of remote computing service to disclose the

  5  contents of any wire or electronic communication to which this

  6  subsection is made applicable by subsection (3):

  7         (a)  Without required notice to the subscriber or

  8  customer if the investigative or law enforcement officer

  9  obtains a warrant issued by the judge of a court of competent

10  jurisdiction; or

11         (b)  With prior notice, or with delayed notice pursuant

12  to s. 934.25, from the investigative or law enforcement

13  officer to the subscriber or customer if the investigative or

14  law enforcement officer:

15         1.  Uses a subpoena; or

16         2.  Obtains a court order for such disclosure under

17  subsection (5).

18         (3)  Subsection (2) is applicable with respect to any

19  electronic communication that is held or maintained on a

20  remote computing service:

21         (a)  On behalf of a subscriber or customer of such

22  service and received by means of electronic transmission from,

23  or created by means of computer processing of communications

24  received by means of electronic transmission from, a

25  subscriber or customer of such service.

26         (b)  Solely for the purposes of providing storage or

27  computer processing services to a subscriber or customer, if

28  the provider is not authorized to access the contents of any

29  such communication for purposes of providing any service other

30  than storage or computer processing.

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  1         (4)(a)  An investigative or law enforcement officer may

  2  require Except as provided in paragraph (b), a provider of

  3  electronic communication service or remote computing service

  4  to may disclose a record or other information pertaining to a

  5  subscriber or customer of such service, not including the

  6  contents of a communication, covered by subsection (1) or

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

  8  law enforcement officer.

  9         (b)  A provider of electronic communication service or

10  remote computing service shall disclose a record or other

11  information pertaining to a subscriber to or customer of such

12  service, not including the contents of communications covered

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

14  law enforcement officer only when the investigative or law

15  enforcement officer:

16         1.  Obtains a warrant issued by the judge of a court of

17  competent jurisdiction;

18         2.  Obtains a court order for such disclosure under

19  subsection (5); or

20         3.  Has the consent of the subscriber or customer to

21  such disclosure; or.

22         4.  Seeks information under paragraph (b).

23         (b)(c)  A provider of electronic communication service

24  or remote computing service shall disclose to an investigative

25  or law enforcement officer the name;, address; local and long

26  distance telephone connection records, or records of session

27  times or durations; length of service, including the starting

28  date of service; types of services used; telephone or

29  instrument number or other subscriber number or identity,

30  including any temporarily assigned network address; and means

31  and source of payment, including any credit card or bank

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  1  account number of, telephone toll billing records, telephone

  2  number or other subscriber number or identity, and length of

  3  service as a subscriber to or customer of such service and the

  4  types of services the subscriber or customer used when the

  5  governmental entity uses a subpoena or obtains such

  6  information in the manner specified in paragraph (a) for

  7  obtaining information under that paragraph.

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

  9  receives records or information under this subsection is not

10  required to provide notice to a subscriber or customer.

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

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

13  investigative or law enforcement officer offers specific and

14  articulable facts showing that there are reasonable grounds to

15  believe the contents of a wire or electronic communication or

16  the records of other information sought are relevant and

17  material to an ongoing criminal investigation.  A court

18  issuing an order pursuant to this section, on a motion made

19  promptly by the service provider, may quash or modify such

20  order if the information or records requested are unusually

21  voluminous in nature or compliance with such order otherwise

22  would cause an undue burden on such provider.

23         (6)  No cause of action shall lie in any court against

24  any provider of wire or electronic communication service, its

25  officers, employees, agents, or other specified persons for

26  providing information, facilities, or assistance in accordance

27  with the terms of a court order, warrant, subpoena, or

28  certification under ss. 934.21-934.28.

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

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

31  investigative or law enforcement officer, shall take all

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  1  necessary steps to preserve records and other evidence in its

  2  possession pending the issuance of a court order or other

  3  process.

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

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

  6  an additional 90 days upon a renewed request by an

  7  investigative or law enforcement officer.

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

  9  remote computing service, or any other person who furnished

10  assistance pursuant to this section shall be held harmless

11  from any claim and civil liability resulting from the

12  disclosure of information pursuant to this section and shall

13  be reasonably compensated for reasonable expenses incurred in

14  providing such assistance.

15         Section 9.  Subsection (4) of section 934.27, Florida

16  Statutes, is amended to read:

17         934.27  Civil action:  relief; damages; defenses.--

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

19  complete defense to any civil or criminal action brought under

20  ss. 934.21-934.28:

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

22  statutory authorization, including, but not limited to, a

23  request of an investigative or law enforcement officer to

24  preserve records or other evidence, as provided in s.

25  934.23(7).

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

27  officer under s. 934.09(7).

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

29  permitted the conduct complained of.

30         Section 10.  Subsections (3) and (4) of section 934.31,

31  Florida Statutes, are amended to read:

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  1         934.31  General prohibition on pen register and trap

  2  and trace device use; exception.--

  3         (3)  An investigative or law enforcement officer

  4  authorized to install and use a pen register or trap and trace

  5  device under ss. 934.31-934.34 shall use technology reasonably

  6  available to him or her which restricts the recording or

  7  decoding of electronic or other impulses to the dialing,

  8  routing, addressing, and signaling information used in

  9  processing and transmitting wire or electronic communications

10  so that the contents of any wire or electronic communications

11  are not recorded or decoded call processing.

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

13  chapter, any investigative or law enforcement officer

14  specially designated by the Governor, the Attorney General,

15  the statewide prosecutor, or a state attorney acting pursuant

16  to this chapter, who reasonably determines that:

17         1.  An emergency exists which:

18         a.  Involves immediate danger of death or serious

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

20  prisoner, or involves conspiratorial activities threatening

21  the security interest of the nation or state; 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

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

  2  is issued in accordance with s. 934.33.

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

  4  shall immediately terminate when the information sought is

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

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

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

  8         (c)  The knowing installation or use by any

  9  investigative or law enforcement officer of a pen register or

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

11  application for the authorizing order within 48 hours after

12  the installation constitutes a violation of s. 934.31.

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

14  landlord, custodian, or other person who has furnished

15  facilities or technical assistance pursuant to this subsection

16  shall be held harmless from any claims and civil liability

17  resulting from the disclosure of information pursuant to this

18  subsection and shall be reasonably compensated for reasonable

19  expenses incurred in providing such facilities and assistance.

20         Section 11.  Section 934.33, Florida Statutes, is

21  amended to read:

22         934.33  Issuance of an order for a pen register or a

23  trap and trace device.--

24         (1)  Upon application made under s. 934.32, the court

25  shall enter an ex parte order authorizing the installation and

26  use of a pen register or a trap and trace device within the

27  jurisdiction of the court if the court finds that the

28  applicant specified in s. 934.32(1) has certified to the court

29  that the information likely to be obtained by such

30  installation and use is relevant to an ongoing criminal

31  investigation. Whenever such order is served on any person or

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  1  entity not specifically named in the order, upon request of

  2  such person or entity, the person specified in s. 934.32 who

  3  has requested and is serving such order shall provide written

  4  or electronic certification that such order applies to the

  5  person or entity being served.

  6         (2)  An order issued under this section:

  7         (a)  Must specify the following:

  8         1.  The identity, if known, of the person to whom is

  9  leased or in whose name is listed the telephone line or other

10  facility to which the pen register or trap and trace device is

11  to be attached or applied.

12         2.  The identity, if known, of the person who is the

13  subject of the criminal investigation.

14         3.  The attributes of the communications to which the

15  order applies, including the number or other identifier and,

16  if known, the location of the telephone line or other facility

17  to which the pen register or trap and trace device is to be

18  attached or applied and, in the case of an order authorizing

19  installation and use of a trap and trace device, the

20  geographic limits of the order The number and, if known,

21  physical location of the telephone line to which the pen

22  register or trap and trace device is to be attached and, in

23  the case of a trap and trace device, the geographic limits of

24  the trap and trace order.

25         4.  A statement of the offense to which the information

26  likely to be obtained by the pen register or trap and trace

27  device relates.

28         (b)  Must direct, upon the request of the applicant,

29  the furnishing of information, facilities, and technical

30  assistance necessary to accomplish the installation of the pen

31  register or trap and trace device under s. 934.34.

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  1         (3)(a)  An order issued under this section may not

  2  authorize the installation and use of a pen register or a trap

  3  and trace device for more than 60 days.

  4         (b)  Extensions of such an order may be granted but

  5  only upon an application for an order under s. 934.32 and upon

  6  the judicial finding required by subsection (1).  The period

  7  of extension may not exceed 60 days.

  8         (4)  An order authorizing or approving the installation

  9  and use of a pen register or a trap and trace device must

10  direct that:

11         (a)  The order be sealed until otherwise ordered by the

12  court, and

13         (b)  The person owning or leasing the line or other

14  facility to which the pen register or a trap and trace device

15  is attached or applied, or who is obligated by the order has

16  been ordered by the court to provide assistance to the

17  applicant, not disclose the existence of the pen register or

18  trap and trace device or the existence of the investigation to

19  the listed subscriber or to any other person except as

20  otherwise ordered by the court.

21         (5)  A court may not require greater specificity or

22  additional information beyond that which is required under s.

23  934.32 and this section as a requisite for issuing an order as

24  provided in this section.

25         (6)(a)  If an investigative or law enforcement agency

26  implementing an ex parte order under this section seeks to do

27  so by installing and using its own pen register or trap and

28  trace device on a packet-switched data network of a provider

29  of electronic communication service to the public, the agency

30  must ensure that a record is maintained which identifies:

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  1         1.  Each officer who installed the device and each

  2  officer who accessed the device to obtain information from the

  3  network;

  4         2.  The date and time the device was installed; the

  5  date and time the device was uninstalled; and the date, time,

  6  and duration of each occasion the device was accessed to

  7  obtain information;

  8         3.  The configuration of the device at the time of its

  9  installation and any subsequent modification of that

10  configuration; and

11         4.  Any information that was collected by the device.

12         (b)  To the extent that the pen register or trap and

13  trace device can be set automatically to record electronically

14  the information required in paragraph (a), the record shall be

15  maintained electronically throughout the installation and use

16  of the device.

17         (7)  The record maintained under subsection (6) shall

18  be provided ex parte and under seal to the court that entered

19  the ex parte order authorizing the installation and use of the

20  device within 30 days after termination of the order,

21  including any extension of the order.

22         Section 12.  Subsection (2) of section 934.34, Florida

23  Statutes, is amended to read:

24         934.34  Assistance in installation and use of a pen

25  register or a trap and trace device.--

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

27  934.32(1), a provider of a wire or electronic communication

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

29  trap and trace device forthwith on the appropriate line or

30  other facility and shall furnish such investigative or law

31  enforcement officer or other applicant all additional

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  1  information, facilities, and technical assistance, including

  2  installation and operation of the device unobtrusively and

  3  with a minimum of interference with the services that the

  4  person so ordered by the court accords the party with respect

  5  to whom the installation and use is to take place if such

  6  installation and assistance is directed by a court order as

  7  provided in s. 934.33(2)(b).  Unless otherwise ordered by the

  8  court, the results of the trap and trace device shall be

  9  furnished, pursuant to s. 934.31(4) or s. 934.33(2)(b), to an

10  officer of the law enforcement agency designated in the court

11  order at reasonable intervals during regular business hours

12  for the duration of the order. The obligation of a provider of

13  electronic communication service under such an order or under

14  such emergency pen register or trap and trace device

15  installation may include, but is not limited to, conducting an

16  in-progress trace, or providing other assistance to support

17  the investigation as may be specified in the order.

18         Section 13.  This act shall take effect upon becoming a

19  law.

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  1            *****************************************

  2                          SENATE SUMMARY

  3    Revises various laws governing the interception of
      communications by investigative or law enforcement
  4    agencies. Defines the terms "foreign intelligence
      information," "protected computer," and "computer
  5    trespasser." Authorizes a law enforcement agency to
      intercept wire or electronic communications of a computer
  6    trespasser. Authorizes the Department of Law Enforcement
      to intercept wire, oral, or electronic communications for
  7    purposes of investigating acts of terrorism or the
      attempted or threatened use of a destructive device or
  8    weapon of mass destruction. Provides for a court to
      authorize the interception of communications outside the
  9    court's jurisdiction. Authorizes a law enforcement agency
      to disclose the contents of an intercepted communication
10    to certain state and federal officials. Provides that the
      request of a law enforcement officer to preserve records
11    is a defense against a civil or criminal action
      concerning unlawful access to communications. Provides
12    certain limitations on the use of a pen register or trap
      and trace device. Requires that a law enforcement agency
13    maintain a record of the use of a pen register or trap
      and trace device installed pursuant to an ex parte order.
14    (See bill for details.)

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