HB 1161 2003
1	A bill to be entitled
2	An act relating to identity theft and Internet fraud
3	prevention, investigation, and prosecution; amending s.
4	817.568, F.S.; providing for penalty provisions for the
5	commission of a first degree and second degree felony
6	concerning identity theft under certain circumstances;
7	providing for higher offense severity levels in identity
8	theft cases under certain circumstances; providing that
9	every Florida consumer may be provided two free credit
10	reports a year; amending s. 934.23, F.S.; providing a
11	definition; clarifying that Florida judges with
12	jurisdiction over specific crimes have authority to issue
13	search warrants for electronic evidence relating thereto,
14	regardless of where the electronic evidence is situated;
15	creating s. 92.605, F.S.; providing definitions; providing
16	for self-authentication for out-of-state business records
17	under certain circumstances with notice to opponent;
18	providing for procedures; providing an effective date.
19
20	Be It Enacted by the Legislature of the State of Florida:
21
22	Section 1. Paragraph (b) of subsection (2) of section
23	817.568, Florida Statutes, is amended, paragraph (c) is added to
24	said subsection, subsections (5), (6), (7), (8), (9), and (10)
25	are renumbered as subsections (7), (8), (9), (10), (11), and
26	(12), respectively, and new subsections (5) and (6) are added to
27	said section, to read:
28	817.568 Criminal use of personal identification
29	information.--
30	(2)
31	(b) Any person who willfully and without authorization
32	fraudulently uses personal identification information concerning
33	an individual without first obtaining that individual's consent
34	commits a felony of the second degree, punishable as provided in
35	s. 775.082, s. 775.083, or s. 775.084, if the pecuniary benefit,
36	the value of the services received, the payment sought to be
37	avoided, or the amount of the injury or fraud perpetrated is not
38	less than $20,000 or more than $100,000$75,000 or more.
39	(c) Any person who willfully and without authorization
40	fraudulently uses personal identification information concerning
41	an individual without first obtaining that individual’s consent
42	commits a felony of the first degree, punishable as provided in
43	s. 775.082, s. 775.083, or s. 775.084, if the pecuniary benefit,
44	the value of the services received, the payment sought to be
45	avoided, or the amount of the injury or fraud perpetrated is
46	$100,000 or more.
47	(5) If an offense prohibited under this section was
48	committed using the personal identification information of a
49	child, its offense severity level shall be increased to offense
50	severity level 8; if the child involved was the defendant’s
51	natural child or any child over whom the defendant had custodial
52	authority, the offense severity level shall be increased to
53	offense severity level 9.
54	(6) Any consumer reporting agency as defined in s. 603(f)
55	of the Fair Credit Reporting Act shall provide, free of charge,
56	upon the request of any person and without regard to any failure
57	to extend credit to that person, up to two consumer reports each
58	calendar year, including explanations of any codes contained
59	therein.
60	Section 2. Subsection (1) of section 934.23, Florida
61	Statutes, is amended to read:
62	934.23 Required disclosure of customer communications or
63	records.--
64	(1) An investigative or law enforcement officer may
65	require the disclosure by a provider of electronic communication
66	service of the contents of a wire or electronic communication
67	that has been in electronic storage in an electronic
68	communications system for 180 days or less only pursuant to a
69	warrant issued by the judge of a court of competent
70	jurisdiction. For purposes of this section, "a court of
71	competent jurisdiction" means a court having jurisdiction over
72	the investigation or otherwise authorized by law.An
73	investigative or law enforcement officer may require the
74	disclosure by a provider of electronic communication services of
75	the contents of a wire or electronic communication that has been
76	in electronic storage in an electronic communications system for
77	more than 180 days by the means available under subsection (2).
78	Section 3. Section 92.605, Florida Statutes, is created to
79	read:
80	92.605 Production of certain records by Florida
81	corporations and out-of-state corporations.
82	(1) For the purposes of this section, the term:
83	(a) "Adverse result" includes one of the following
84	consequences to notification of the existence of a court order,
85	a subpoena, or a search warrant:
86	1. Danger to the life or physical safety of an individual.
87	2. A flight from prosecution.
88	3. The destruction of or tampering with evidence.
89	4. The intimidation of potential witnesses.
90	5. Serious jeopardy to an investigation or undue delay of
91	a trial.
92	(b) "Applicant" means a law enforcement officer who is
93	seeking a court order or subpoena under s. 16.56, s. 27.04, s.
94	905.185, or s. 914.04 or who is issued a search warrant under s.
95	933.01, or anyone who is authorized to issue a subpoena under
96	the Florida Rules of Criminal Procedure.
97	(c) "Business" means any business, institution,
98	association, profession, occupation, or calling of any kind,
99	whether or not conducted for profit.
100	(d) "Electronic communication services" and "remote
101	computing services" have the same meaning as provided in the
102	Electronic Communications Privacy Act in chapter 121 (commencing
103	with section. 2701) of Part I of Title 18 of the United States
104	Code Annotated. This section does not apply to corporations that
105	do not provide those services to the public.
106	(e) "Florida corporation" means any corporation or other
107	entity that is regulated under chapter 607, excluding out-of-
108	state corporations.
109	(f) "Out-of-state corporation" means any corporation that
110	is qualified to do business in this state under s. 607.1501.
111	(g) "Out-of-state record of regularly conducted business
112	activity" means a memorandum, report, record, or data
113	compilation, in any form, of acts, events, conditions, opinions,
114	or diagnoses, maintained in another state or country.
115	(h) "Out-of-state certification" means a written
116	declaration made and signed in another state or country by the
117	custodian of an out-of-state record of regularly conducted
118	business activity or another qualified person that, if falsely
119	made, would subject the declarant to criminal penalty under the
120	laws of another state or country.
121	(i) "Properly served" means delivery by hand or in a
122	manner reasonably allowing for proof of delivery if delivered by
123	United States mail, overnight-delivery service, or facsimile to
124	a person or entity properly registered to do business in any
125	state.
126	(2) The following provisions apply to any subpoena, court
127	order, or search warrant issued in compliance with the
128	Electronic Communications Privacy Act in chapter 121 (commencing
129	with s. 2701) of Part I of Title 18 of the United States Code
130	and that is subject to this chapter, which allows a search for
131	records that are in the actual or constructive possession of an
132	out-of-state corporation that provides electronic communication
133	services or remote computing services to the public, when those
134	records would reveal the identity of the customers using those
135	services; data stored by, or on behalf of, the customers; the
136	customers' usage of those services; the recipients or
137	destinations of communications sent to or from those customers.
138	(a) When properly served with a subpoena, court order, or
139	search warrant issued by a Florida court, an out-of-state
140	corporation subject to this section shall provide to the
141	applicant all records sought pursuant to such subpoena, court
142	order, or warrant within 10 business days after receipt, or the
143	date indicated within the subpoena, if later, including those
144	records maintained or located outside the State of Florida.
145	(b) When the applicant makes a showing and the court finds
146	that failure to produce records within 10 business days would
147	cause an adverse result, the subpoena, court order, or warrant
148	may require production of records within less than 10 business
149	days. A court may reasonably extend the time required for
150	production of the records upon finding that the out-of-state
151	corporation has shown good cause for that extension and that an
152	extension of time would not cause an adverse result.
153	(c) An out-of-state corporation seeking to quash the
154	subpoena, court order, or warrant must seek relief from the
155	court issuing such subpoena, court order, or warrant within the
156	time required for production of records under this section. The
157	issuing court shall hear and decide that motion within 5 court
158	days after the motion is filed.
159	(d) The out-of-state corporation shall verify the
160	authenticity of records that it produces by providing an
161	affidavit that complies with the requirements set forth in this
162	section. Records produced in compliance with this section are
163	admissible in evidence as set forth in subsection (5).
164	(3) A Florida corporation that provides electronic
165	communication services or remote computing services to the
166	public, when served with a subpoena, court order, or warrant
167	issued by another state to produce records that would reveal the
168	identity of the customers using those services; data stored by,
169	or on behalf of, the customers; the customers' usage of those
170	services; or the recipients or destinations of communications
171	sent to or from those customers shall produce
172	those records as if that subpoena, court order, or warrant had
173	been issued by a Florida court.
174	(4) A cause of action does not arise against any out-of-
175	state or Florida corporation subject to this section, or its
176	officers, employees, agents, or other specified persons, for
177	providing records, information, facilities, or assistance in
178	accordance with the terms of a subpoena, court order, or warrant
179	subject to this section.
180	(5) In a criminal proceeding in a court of this state, an
181	out-of-state record of regularly conducted business activity, or
182	a copy of such record, shall not be excluded as hearsay evidence
183	by s. 90.802, if an out-of-state certification attests that:
184	(a) Such record was made at or near the time of the
185	occurrence of the matters set forth by, or from information
186	transmitted by, a person with knowledge of those matters.
187	(b) Such record was kept in the course of a regularly
188	conducted business activity.
189	(c) The business activity made such a record as a regular
190	practice.
191	(d) If such record is not the original, it is a duplicate
192	of the original, unless the source of information or the method
193	or circumstances of preparation indicate lack of
194	trustworthiness.
195	(6) An out-of-state certification under this section shall
196	authenticate such record or duplicate.
197	(7) No evidence in such records in the form of opinion or
198	diagnosis is admissible under subsection (5) unless such opinion
199	or diagnosis would be admissible under ss. 90.701-90.705 if the
200	person whose opinion is recorded were to testify to the opinion
201	directly.
202	(8) As soon after the arraignment as practicable, or 60
203	days prior to trial, a party intending to offer in evidence
204	under this section an out-of-state record of regularly conducted
205	business activity shall provide written notice of that intention
206	to each other party. A motion opposing admission in evidence of
207	such record shall be made by the opposing party and determined
208	by the court before trial. Failure by a party to file such
209	motion before trial shall constitute a waiver of objection to
210	such record or duplicate, but the court for cause shown may
211	grant relief from the waiver.
212	(9) In any criminal case, the content of any electronic
213	communication may be obtained under this section only by court
214	order or by the issuance of a search warrant, unless otherwise
215	provided under the Electronic Communications Privacy Act or
216	other provision of law.
217	Section 4. This act shall take effect July 1, 2003.