1 | The Justice Appropriations Committee recommends the following: |
2 |
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3 | Council/Committee Substitute |
4 | Remove the entire bill and insert: |
5 |
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6 | A bill to be entitled |
7 | An act relating to consumer protection; creating s. |
8 | 501.165, F.S.; prohibiting the use of deception to obtain |
9 | certain personal information for commercial solicitation |
10 | purposes; providing that such acts are deceptive trade |
11 | practices or unfair methods of competition; providing |
12 | penalties; amending s. 501.2075, F.S.; providing an |
13 | exception to a civil penalty; creating s. 501.2076, F.S.; |
14 | prohibiting falsely representing oneself as being |
15 | affiliated with a law enforcement or firefighting agency or |
16 | public utility; providing a penalty; providing that a |
17 | violation of s. 817.568, F.S., relating to the criminal use |
18 | of personal identification information, is an unfair or |
19 | deceptive act or practice or unfair method of competition |
20 | in violation of part II of ch. 501, F.S.; providing |
21 | penalties; amending ss. 501.203 and 501.204, F.S.; changing |
22 | obsolete dates; reenacting and amending s. 501.207, F.S., |
23 | relating to remedies of the enforcing authority under the |
24 | Florida Deceptive and Unfair Trade Practices Act; providing |
25 | that the court may order actions brought under that act on |
26 | behalf of an enterprise; amending s. 817.568, F.S.; |
27 | including other information within the definition of the |
28 | term "personal identification information"; defining the |
29 | term "counterfeit or fictitious personal identification |
30 | information"; revising criminal penalties relating to the |
31 | offense of fraudulently using, or possessing with intent to |
32 | fraudulently use, personal identification information; |
33 | providing minimum mandatory terms of imprisonment; creating |
34 | the offenses of willfully and fraudulently using, or |
35 | possessing with intent to fraudulently use, personal |
36 | identification information concerning a deceased |
37 | individual; providing criminal penalties; providing for |
38 | minimum mandatory terms of imprisonment; creating the |
39 | offense of willfully and fraudulently creating or using, or |
40 | possessing with intent to fraudulently use, counterfeit or |
41 | fictitious personal identification information; providing |
42 | criminal penalties; providing for reclassification of |
43 | offenses under certain circumstances; providing for |
44 | reduction or suspension of sentences under certain |
45 | circumstances; creating s. 817.5681, F.S.; requiring |
46 | business persons maintaining computerized data that |
47 | includes personal information to provide notice of breaches |
48 | of system security under certain circumstances; providing |
49 | requirements; providing for administrative fines; providing |
50 | exceptions and limitations; authorizing delays of such |
51 | disclosures under certain circumstances; providing |
52 | definitions; providing for alternative notice methods; |
53 | specifying conditions of compliance for persons maintaining |
54 | certain alternative notification procedures; specifying |
55 | conditions under which notification is not required; |
56 | providing requirements for documentation and maintenance of |
57 | documentation; providing an administrative fine for failing |
58 | to document certain failures to comply; providing for |
59 | application of administrative sanctions to certain persons |
60 | under certain circumstances; authorizing the Department of |
61 | Legal Affairs to institute proceedings to assess and |
62 | collect fines; providing that no entity may accumulate or |
63 | report a consumer's drug test results with any of their |
64 | other personal data; providing exceptions; providing for |
65 | severability; providing an effective date. |
66 |
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67 | Be It Enacted by the Legislature of the State of Florida: |
68 |
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69 | Section 1. Section 501.165, Florida Statutes, is created |
70 | to read: |
71 | 501.165 Obtaining personal information for commercial |
72 | solicitation.--Any person who intentionally uses deceptive |
73 | practices or means to obtain another person's address, telephone |
74 | number, or social security number and uses it to engage in |
75 | commercial solicitation, or provides it to another person for |
76 | purposes of commercial solicitation, commits an unfair or |
77 | deceptive act or practice or unfair method of competition in |
78 | violation of part II of this chapter, and is subject to the |
79 | penalties and remedies provided for such violation, in addition |
80 | to remedies otherwise available for such conduct. |
81 | Section 2. Section 501.2075, Florida Statutes, is amended |
82 | to read: |
83 | 501.2075 Civil penalty.--Except as provided in s. 501.2076 |
84 | or s. 501.2077, any person, firm, corporation, association, or |
85 | entity, or any agent or employee of the foregoing, who is |
86 | willfully using, or has willfully used, a method, act, or |
87 | practice declared unlawful under s. 501.204, or who is willfully |
88 | violating any of the rules of the department adopted under this |
89 | part, is liable for a civil penalty of not more than $10,000 for |
90 | each such violation. Willful violations occur when the person |
91 | knew or should have known that his or her conduct was unfair or |
92 | deceptive or prohibited by rule. This civil penalty may be |
93 | recovered in any action brought under this part by the enforcing |
94 | authority; or the enforcing authority may terminate any |
95 | investigation or action upon agreement by the person, firm, |
96 | corporation, association, or entity, or the agent or employee of |
97 | the foregoing, to pay a stipulated civil penalty. The |
98 | department or the court may waive any such civil penalty if the |
99 | person, firm, corporation, association, or entity, or the agent |
100 | or employee of the foregoing, has previously made full |
101 | restitution or reimbursement or has paid actual damages to the |
102 | consumers or governmental entities who have been injured by the |
103 | unlawful act or practice or rule violation. If civil penalties |
104 | are assessed in any litigation, the enforcing authority is |
105 | entitled to reasonable attorney's fees and costs. A civil |
106 | penalty so collected shall accrue to the state and shall be |
107 | deposited as received into the General Revenue Fund unallocated. |
108 | Section 3. Section 501.2076, Florida Statutes, is created |
109 | to read: |
110 | 501.2076 Misrepresentations; law enforcement, |
111 | firefighters, or public utilities.--Any person who engages in a |
112 | deceptive and unfair trade practice with the intent to deceive |
113 | another person into believing that he or she is affiliated with |
114 | a law enforcement agency, firefighting agency, or public utility |
115 | is subject to a civil penalty not to exceed $15,000 for each |
116 | violation. |
117 | Section 4. A person who violates or fails to comply with |
118 | any provision of section 817.568, Florida Statutes, commits an |
119 | unfair or deceptive act or practice or unfair method of |
120 | competition in violation of part II of chapter 501, Florida |
121 | Statutes, and is subject to the penalties and remedies provided |
122 | for such violation, in addition to remedies otherwise available |
123 | for such conduct. |
124 | Section 5. Subsection (3) of section 501.203, Florida |
125 | Statutes, is amended to read: |
126 | 501.203 Definitions.--As used in this chapter, unless the |
127 | context otherwise requires, the term: |
128 | (3) "Violation of this part" means any violation of this |
129 | act or the rules adopted under this act and may be based upon |
130 | any of the following as of July 1, 2005 2001: |
131 | (a) Any rules promulgated pursuant to the Federal Trade |
132 | Commission Act, 15 U.S.C. ss. 41 et seq.; |
133 | (b) The standards of unfairness and deception set forth |
134 | and interpreted by the Federal Trade Commission or the federal |
135 | courts; |
136 | (c) Any law, statute, rule, regulation, or ordinance which |
137 | proscribes unfair methods of competition, or unfair, deceptive, |
138 | or unconscionable acts or practices. |
139 | Section 6. Subsection (2) of section 501.204, Florida |
140 | Statutes, is amended to read: |
141 | 501.204 Unlawful acts and practices.-- |
142 | (2) It is the intent of the Legislature that, in |
143 | construing subsection (1), due consideration and great weight |
144 | shall be given to the interpretations of the Federal Trade |
145 | Commission and the federal courts relating to s. 5(a)(1) of the |
146 | Federal Trade Commission Act, 15 U.S.C. s. 45(a)(1) as of July |
147 | 1, 2005 2001. |
148 | Section 7. Subsection (1) of section 501.207, Florida |
149 | Statutes, is reenacted, and subsection (3) of that section is |
150 | amended to read: |
151 | 501.207 Remedies of enforcing authority.-- |
152 | (1) The enforcing authority may bring: |
153 | (a) An action to obtain a declaratory judgment that an act |
154 | or practice violates this part. |
155 | (b) An action to enjoin any person who has violated, is |
156 | violating, or is otherwise likely to violate, this part. |
157 | (c) An action on behalf of one or more consumers or |
158 | governmental entities for the actual damages caused by an act or |
159 | practice in violation of this part. However, damages are not |
160 | recoverable under this section against a retailer who has in |
161 | good faith engaged in the dissemination of claims of a |
162 | manufacturer or wholesaler without actual knowledge that it |
163 | violated this part. |
164 | (3) Upon motion of the enforcing authority or any |
165 | interested party in any action brought under subsection (1), the |
166 | court may make appropriate orders, including, but not limited |
167 | to, appointment of a general or special magistrate or receiver |
168 | or sequestration or freezing of assets, to reimburse consumers |
169 | or governmental entities found to have been damaged; to carry |
170 | out a transaction in accordance with the reasonable expectations |
171 | of consumers or governmental entities; to strike or limit the |
172 | application of clauses of contracts to avoid an unconscionable |
173 | result; to bring actions in the name of and on behalf of the |
174 | defendant enterprise; to order any defendant to divest herself |
175 | or himself of any interest in any enterprise, including real |
176 | estate; to impose reasonable restrictions upon the future |
177 | activities of any defendant to impede her or him from engaging |
178 | in or establishing the same type of endeavor; to order the |
179 | dissolution or reorganization of any enterprise; or to grant |
180 | legal, equitable, or other appropriate relief. The court may |
181 | assess the expenses of a general or special magistrate or |
182 | receiver against a person who has violated, is violating, or is |
183 | otherwise likely to violate this part. Any injunctive order, |
184 | whether temporary or permanent, issued by the court shall be |
185 | effective throughout the state unless otherwise provided in the |
186 | order. |
187 | Section 8. Section 817.568, Florida Statutes, is amended |
188 | to read: |
189 | 817.568 Criminal use of personal identification |
190 | information.-- |
191 | (1) As used in this section, the term: |
192 | (a) "Access device" means any card, plate, code, account |
193 | number, electronic serial number, mobile identification number, |
194 | personal identification number, or other telecommunications |
195 | service, equipment, or instrument identifier, or other means of |
196 | account access that can be used, alone or in conjunction with |
197 | another access device, to obtain money, goods, services, or any |
198 | other thing of value, or that can be used to initiate a transfer |
199 | of funds, other than a transfer originated solely by paper |
200 | instrument. |
201 | (b) "Authorization" means empowerment, permission, or |
202 | competence to act. |
203 | (c) "Harass" means to engage in conduct directed at a |
204 | specific person that is intended to cause substantial emotional |
205 | distress to such person and serves no legitimate purpose. |
206 | "Harass" does not mean to use personal identification |
207 | information for accepted commercial purposes. The term does not |
208 | include constitutionally protected conduct such as organized |
209 | protests or the use of personal identification information for |
210 | accepted commercial purposes. |
211 | (d) "Individual" means a single human being and does not |
212 | mean a firm, association of individuals, corporation, |
213 | partnership, joint venture, sole proprietorship, or any other |
214 | entity. |
215 | (e) "Person" means a "person" as defined in s. 1.01(3). |
216 | (f) "Personal identification information" means any name |
217 | or number that may be used, alone or in conjunction with any |
218 | other information, to identify a specific individual, including |
219 | any: |
220 | 1. Name, postal or electronic mail address, telephone |
221 | number, social security number, date of birth, mother's maiden |
222 | name, official state-issued or United States-issued driver's |
223 | license or identification number, alien registration number, |
224 | government passport number, employer or taxpayer identification |
225 | number, Medicaid or food stamp account number, or bank account |
226 | number, or credit or debit card number, or personal |
227 | identification number or code assigned to the holder of a debit |
228 | card by the issuer to permit authorized electronic use of such |
229 | card; |
230 | 2. Unique biometric data, such as fingerprint, voice |
231 | print, retina or iris image, or other unique physical |
232 | representation; |
233 | 3. Unique electronic identification number, address, or |
234 | routing code; or |
235 | 4. Medical records; |
236 | 5.4. Telecommunication identifying information or access |
237 | device; or. |
238 | 6. Other number or information that can be used to access |
239 | a person's financial resources. |
240 | (g) "Counterfeit or fictitious personal identification |
241 | information" means any counterfeit, fictitious, or fabricated |
242 | information in the similitude of the data outlined in paragraph |
243 | (f) that, although not truthful or accurate, would in context |
244 | lead a reasonably prudent person to credit its truthfulness and |
245 | accuracy. |
246 | (2)(a) Any person who willfully and without authorization |
247 | fraudulently uses, or possesses with intent to fraudulently use, |
248 | personal identification information concerning an individual |
249 | without first obtaining that individual's consent, commits the |
250 | offense of fraudulent use of personal identification |
251 | information, which is a felony of the third degree, punishable |
252 | as provided in s. 775.082, s. 775.083, or s. 775.084. |
253 | (b) Any person who willfully and without authorization |
254 | fraudulently uses personal identification information concerning |
255 | an individual without first obtaining that individual's consent |
256 | commits a felony of the second degree, punishable as provided in |
257 | s. 775.082, s. 775.083, or s. 775.084, if the pecuniary benefit, |
258 | the value of the services received, the payment sought to be |
259 | avoided, or the amount of the injury or fraud perpetrated is |
260 | $5,000 or more or if the person fraudulently uses the personal |
261 | identification information of 10 or more individuals, but fewer |
262 | than 20 individuals, without their consent. Notwithstanding any |
263 | other provision of law, the court shall sentence any person |
264 | convicted of committing the offense described in this paragraph |
265 | to a mandatory minimum sentence of 3 years' imprisonment. |
266 | (c) Any person who willfully and without authorization |
267 | fraudulently uses personal identification information concerning |
268 | an individual without first obtaining that individual's consent |
269 | commits a felony of the first degree, punishable as provided in |
270 | s. 775.082, s. 775.083, or s. 775.084, if the pecuniary benefit, |
271 | the value of the services received, the payment sought to be |
272 | avoided, or the amount of the injury or fraud perpetrated is |
273 | $50,000 or more or if the person fraudulently uses the personal |
274 | identification information of 20 or more individuals, but fewer |
275 | than 30 individuals, without their consent. Notwithstanding any |
276 | other provision of law, the court shall sentence any person |
277 | convicted of committing the offense described in this paragraph: |
278 | 1. to a mandatory minimum sentence of 5 years' |
279 | imprisonment. If the pecuniary benefit, the value of the |
280 | services received, the payment sought to be avoided, or the |
281 | amount of the injury or fraud perpetrated is $100,000 or more, |
282 | or if the person fraudulently uses the personal identification |
283 | information of 30 or more individuals without their consent, |
284 | notwithstanding any other provision of law, the court shall |
285 | sentence any person convicted of committing the offense |
286 | described in this paragraph |
287 | 2. to a mandatory minimum sentence of 10 years' |
288 | imprisonment, if the pecuniary benefit, the value of the |
289 | services received, the payment sought to be avoided, or the |
290 | amount of the injury or fraud perpetrated is $100,000 or more or |
291 | if the person fraudulently uses the personal identification |
292 | information of 30 or more individuals without their consent. |
293 | (3) Neither paragraph (2)(b) nor paragraph (2)(c) prevents |
294 | a court from imposing a greater sentence of incarceration as |
295 | authorized by law. If the minimum mandatory terms of |
296 | imprisonment imposed under paragraph (2)(b) or paragraph (2)(c) |
297 | exceed the maximum sentences authorized under s. 775.082, s. |
298 | 775.084, or the Criminal Punishment Code under chapter 921, the |
299 | mandatory minimum sentence must be imposed. If the mandatory |
300 | minimum terms of imprisonment under paragraph (2)(b) or |
301 | paragraph (2)(c) are less than the sentence that could be |
302 | imposed under s. 775.082, s. 775.084, or the Criminal Punishment |
303 | Code under chapter 921, the sentence imposed by the court must |
304 | include the mandatory minimum term of imprisonment as required |
305 | by paragraph (2)(b) or paragraph (2)(c). |
306 | (4) Any person who willfully and without authorization |
307 | possesses, uses, or attempts to use personal identification |
308 | information concerning an individual without first obtaining |
309 | that individual's consent, and who does so for the purpose of |
310 | harassing that individual, commits the offense of harassment by |
311 | use of personal identification information, which is a |
312 | misdemeanor of the first degree, punishable as provided in s. |
313 | 775.082 or s. 775.083. |
314 | (5) If an offense prohibited under this section was |
315 | facilitated or furthered by the use of a public record, as |
316 | defined in s. 119.011, the offense is reclassified to the next |
317 | higher degree as follows: |
318 | (a) A misdemeanor of the first degree is reclassified as a |
319 | felony of the third degree. |
320 | (b) A felony of the third degree is reclassified as a |
321 | felony of the second degree. |
322 | (c) A felony of the second degree is reclassified as a |
323 | felony of the first degree. |
324 |
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325 | For purposes of sentencing under chapter 921 and incentive gain- |
326 | time eligibility under chapter 944, a felony offense that is |
327 | reclassified under this subsection is ranked one level above the |
328 | ranking under s. 921.0022 of the felony offense committed, and a |
329 | misdemeanor offense that is reclassified under this subsection |
330 | is ranked in level 2 of the offense severity ranking chart in s. |
331 | 921.0022. |
332 | (6) Any person who willfully and without authorization |
333 | fraudulently uses personal identification information concerning |
334 | an individual who is less than 18 years of age without first |
335 | obtaining the consent of that individual or of his or her legal |
336 | guardian commits a felony of the second degree, punishable as |
337 | provided in s. 775.082, s. 775.083, or s. 775.084. |
338 | (7) Any person who is in the relationship of parent or |
339 | legal guardian, or who otherwise exercises custodial authority |
340 | over an individual who is less than 18 years of age, who |
341 | willfully and fraudulently uses personal identification |
342 | information of that individual commits a felony of the second |
343 | degree, punishable as provided in s. 775.082, s. 775.083, or s. |
344 | 775.084. |
345 | (8)(a) Any person who willfully and fraudulently uses, or |
346 | possesses with intent to fraudulently use, personal |
347 | identification information concerning a deceased individual |
348 | commits the offense of fraudulent use or possession with intent |
349 | to use personal identification information of a deceased |
350 | individual, a felony of the third degree, punishable as provided |
351 | in s. 775.082, s. 775.083, or s. 775.084. |
352 | (b) Any person who willfully and fraudulently uses |
353 | personal identification information concerning a deceased |
354 | individual commits a felony of the second degree, punishable as |
355 | provided in s. 775.082, s. 775.083, or s. 775.084, if the |
356 | pecuniary benefit, the value of the services received, the |
357 | payment sought to be avoided, or the amount of injury or fraud |
358 | perpetrated is $5,000 or more, or if the person fraudulently |
359 | uses the personal identification information of 10 or more but |
360 | fewer than 20 deceased individuals. Notwithstanding any other |
361 | provision of law, the court shall sentence any person convicted |
362 | of committing the offense described in this paragraph to a |
363 | mandatory minimum sentence of 3 years' imprisonment. |
364 | (c) Any person who willfully and fraudulently uses |
365 | personal identification information concerning a deceased |
366 | individual commits the offense of aggravated fraudulent use of |
367 | the personal identification information of multiple deceased |
368 | individuals, a felony of the first degree, punishable as |
369 | provided in s. 775.082, s. 775.083, or s. 775.084, if the |
370 | pecuniary benefit, the value of the services received, the |
371 | payment sought to be avoided, or the amount of injury or fraud |
372 | perpetrated is $50,000 or more, or if the person fraudulently |
373 | uses the personal identification information of 20 or more but |
374 | fewer than 30 deceased individuals. Notwithstanding any other |
375 | provision of law, the court shall sentence any person convicted |
376 | of the offense described in this paragraph to a minimum |
377 | mandatory sentence of 5 years' imprisonment. If the pecuniary |
378 | benefit, the value of the services received, the payment sought |
379 | to be avoided, or the amount of the injury or fraud perpetrated |
380 | is $100,000 or more, or if the person fraudulently uses the |
381 | personal identification information of 30 or more deceased |
382 | individuals, notwithstanding any other provision of law, the |
383 | court shall sentence any person convicted of an offense |
384 | described in this paragraph to a mandatory minimum sentence of |
385 | 10 years' imprisonment. |
386 | (9) Any person who willfully and fraudulently creates or |
387 | uses, or possesses with intent to fraudulently use, counterfeit |
388 | or fictitious personal identification information concerning a |
389 | fictitious individual, or concerning a real individual without |
390 | first obtaining that real individual's consent, with intent to |
391 | use such counterfeit or fictitious personal identification |
392 | information for the purpose of committing or facilitating the |
393 | commission of a fraud on another person, commits the offense of |
394 | fraudulent creation or use, or possession with intent to |
395 | fraudulently use, counterfeit or fictitious personal |
396 | identification information, a felony of the third degree, |
397 | punishable as provided in s. 775.082, s. 775.083, or s. 775.084. |
398 | (10) Any person who commits an offense described in this |
399 | section and for the purpose of obtaining or using personal |
400 | identification information misrepresents himself or herself to |
401 | be a law enforcement officer; an employee or representative of a |
402 | bank, credit card company, credit counseling company, or credit |
403 | reporting agency; or any person who wrongfully represents that |
404 | he or she is seeking to assist the victim with a problem with |
405 | the victim's credit history shall have the offense reclassified |
406 | as follows: |
407 | (a) In the case of a misdemeanor, the offense is |
408 | reclassified as a felony of the third degree. |
409 | (b) In the case of a felony of the third degree, the |
410 | offense is reclassified as a felony of the second degree. |
411 | (c) In the case of a felony of the second degree, the |
412 | offense is reclassified as a felony of the first degree. |
413 | (d) In the case of a felony of the first degree or a |
414 | felony of the first degree punishable by a term of imprisonment |
415 | not exceeding life, the offense is reclassified as a life |
416 | felony. |
417 |
|
418 | For purposes of sentencing under chapter 921, a felony offense |
419 | that is reclassified under this subsection is ranked one level |
420 | above the ranking under s. 921.0022 or s. 921.0023 of the felony |
421 | offense committed, and a misdemeanor offense that is |
422 | reclassified under this subsection is ranked in level 2 of the |
423 | offense severity ranking chart. |
424 | (11) The prosecutor may move the sentencing court to |
425 | reduce or suspend the sentence of any person who is convicted of |
426 | a violation of this section and who provides substantial |
427 | assistance in the identification, arrest, or conviction of any |
428 | of that person's accomplices, accessories, coconspirators, or |
429 | principals or of any other person engaged in fraudulent |
430 | possession or use of personal identification information. The |
431 | arresting agency shall be given an opportunity to be heard in |
432 | aggravation or mitigation in reference to any such motion. Upon |
433 | good cause shown, the motion may be filed and heard in camera. |
434 | The judge hearing the motion may reduce or suspend the sentence |
435 | if the judge finds that the defendant rendered such substantial |
436 | assistance. |
437 | (12)(8) This section does not prohibit any lawfully |
438 | authorized investigative, protective, or intelligence activity |
439 | of a law enforcement agency of this state or any of its |
440 | political subdivisions, of any other state or its political |
441 | subdivisions, or of the Federal Government or its political |
442 | subdivisions. |
443 | (13)(9)(a) In sentencing a defendant convicted of an |
444 | offense under this section, the court may order that the |
445 | defendant make restitution under pursuant to s. 775.089 to any |
446 | victim of the offense. In addition to the victim's out-of-pocket |
447 | costs, such restitution may include payment of any other costs, |
448 | including attorney's fees incurred by the victim in clearing the |
449 | victim's credit history or credit rating, or any costs incurred |
450 | in connection with any civil or administrative proceeding to |
451 | satisfy any debt, lien, or other obligation of the victim |
452 | arising as the result of the actions of the defendant. |
453 | (b) The sentencing court may issue such orders as are |
454 | necessary to correct any public record that contains false |
455 | information given in violation of this section. |
456 | (14)(10) Prosecutions for violations of this section may |
457 | be brought on behalf of the state by any state attorney or by |
458 | the statewide prosecutor. |
459 | (15)(11) The Legislature finds that, in the absence of |
460 | evidence to the contrary, the location where a victim gives or |
461 | fails to give consent to the use of personal identification |
462 | information is the county where the victim generally resides. |
463 | (16)(12) Notwithstanding any other provision of law, venue |
464 | for the prosecution and trial of violations of this section may |
465 | be commenced and maintained in any county in which an element of |
466 | the offense occurred, including the county where the victim |
467 | generally resides. |
468 | (17)(13) A prosecution of an offense prohibited under |
469 | subsection (2), subsection (6), or subsection (7) must be |
470 | commenced within 3 years after the offense occurred. However, a |
471 | prosecution may be commenced within 1 year after discovery of |
472 | the offense by an aggrieved party, or by a person who has a |
473 | legal duty to represent the aggrieved party and who is not a |
474 | party to the offense, if such prosecution is commenced within 5 |
475 | years after the violation occurred. |
476 | Section 9. Section 817.5681, Florida Statutes, is created |
477 | to read: |
478 | 817.5681 Breach of security concerning confidential |
479 | personal information in third-party possession; administrative |
480 | penalties.-- |
481 | (1)(a) Any person who conducts business in this state and |
482 | maintains computerized data in a system that includes personal |
483 | information shall provide notice of any breach of the security |
484 | of the system, following a determination of the breach, to any |
485 | resident of this state whose unencrypted personal information |
486 | was, or is reasonably believed to have been, acquired by an |
487 | unauthorized person. The notification shall be made without |
488 | unreasonable delay, consistent with the legitimate needs of law |
489 | enforcement, as provided in subsection (3) and paragraph |
490 | (10)(a), or subject to any measures necessary to determine the |
491 | presence, nature, and scope of the breach and restore the |
492 | reasonable integrity of the system. Notification must be made no |
493 | later than 45 days following the determination of the breach |
494 | unless otherwise provided in this section. |
495 | (b) Any person required to make notification under |
496 | paragraph (a) who fails to do so within 45 days following the |
497 | determination of a breach or receipt of notice from law |
498 | enforcement as provided in subsection (3) is liable for an |
499 | administrative fine not to exceed $500,000, as follows: |
500 | 1. In the amount of $1,000 for each day the breach goes |
501 | undisclosed for up to 30 days and, thereafter, $50,000 for each |
502 | 30-day period or portion thereof for up to 180 days. |
503 | 2. If notification is not made within 180 days, any person |
504 | required to make notification under paragraph (a) who fails to |
505 | do so is subject to an administrative fine of up to $500,000. |
506 | (c) The administrative sanctions for failure to notify |
507 | provided in this subsection shall not apply in the case of |
508 | personal information in the custody of any governmental agency |
509 | or subdivision, unless that governmental agency or subdivision |
510 | has entered into a contract with a contractor or third-party |
511 | administrator to provide governmental services. In such case, |
512 | the contractor or third-party administrator shall be a person to |
513 | whom the administrative sanctions provided in this subsection |
514 | would apply, although such contractor or third-party |
515 | administrator found in violation of the notification |
516 | requirements provided in this subsection would not have an |
517 | action for contribution or set-off available against the |
518 | employing agency or subdivision. |
519 | (2)(a) Any person who maintains computerized data that |
520 | includes personal information on behalf of another business |
521 | entity shall disclose to the business entity for which the |
522 | information is maintained any breach of the security of the |
523 | system as soon as practicable, but no later than 10 days |
524 | following the determination, if the personal information was, or |
525 | is reasonably believed to have been, acquired by an unauthorized |
526 | person. The person who maintains the data on behalf of another |
527 | business entity and the business entity on whose behalf the data |
528 | is maintained may agree who will provide the notice, if any is |
529 | required, as provided in paragraph (1)(a), provided only a |
530 | single notice for each breach of the security of the system |
531 | shall be required. If agreement regarding notification cannot be |
532 | reached, the person who has the direct business relationship |
533 | with the resident of this state shall be subject to the |
534 | provisions of paragraph (1)(a). |
535 | (b) Any person required to disclose to a business entity |
536 | under paragraph (a) who fails to do so within 10 days after the |
537 | determination of a breach or receipt of notification from law |
538 | enforcement as provided in subsection (3) is liable for an |
539 | administrative fine not to exceed $500,000, as follows: |
540 | 1. In the amount of $1,000 for each day the breach goes |
541 | undisclosed for up to 30 days and, thereafter, $50,000 for each |
542 | 30-day period or portion thereof for up to 180 days. |
543 | 2. If disclosure is not made within 180 days, any person |
544 | required to make disclosures under paragraph (a) who fails to do |
545 | so is subject to an administrative fine of up to $500,000. |
546 | (c) The administrative sanctions for nondisclosure |
547 | provided in this subsection shall not apply in the case of |
548 | personal information in the custody of any governmental agency |
549 | or subdivision unless that governmental agency or subdivision |
550 | has entered into a contract with a contractor or third-party |
551 | administrator to provide governmental services. In such case, |
552 | the contractor or third-party administrator shall be a person to |
553 | whom the administrative sanctions provided in this subsection |
554 | would apply, although such contractor or third-party |
555 | administrator found in violation of the nondisclosure |
556 | restrictions in this subsection would not have an action for |
557 | contribution or set-off available against the employing agency |
558 | or subdivision. |
559 | (3) The notification required by this section may be |
560 | delayed upon a request by law enforcement if a law enforcement |
561 | agency determines that the notification will impede a criminal |
562 | investigation. The notification time period required by this |
563 | section shall commence after the person receives notice from the |
564 | law enforcement agency that the notification will not compromise |
565 | the investigation. |
566 | (4) For purposes of this section, the terms "breach" and |
567 | "breach of the security of the system" mean unlawful and |
568 | unauthorized acquisition of computerized data that materially |
569 | compromises the security, confidentiality, or integrity of |
570 | personal information maintained by the person. Good faith |
571 | acquisition of personal information by an employee or agent of |
572 | the person is not a breach or breach of the security of the |
573 | system, provided the information is not used for a purpose |
574 | unrelated to the business or subject to further unauthorized |
575 | use. |
576 | (5) For purposes of this section, the term "personal |
577 | information" means an individual's first name, first initial and |
578 | last name, or any middle name and last name, in combination with |
579 | any one or more of the following data elements when the data |
580 | elements are not encrypted: |
581 | (a) Social security number. |
582 | (b) Driver's license number or Florida Identification Card |
583 | number. |
584 | (c) Account number, credit card number, or debit card |
585 | number, in combination with any required security code, access |
586 | code, or password that would permit access to an individual's |
587 | financial account. |
588 |
|
589 | For purposes of this section, the term "personal information" |
590 | does not include publicly available information that is lawfully |
591 | made available to the general public from federal, state, or |
592 | local government records or widely distributed media. |
593 | (6) For purposes of this section, notice may be provided |
594 | by one of the following methods: |
595 | (a) Written notice; |
596 | (b) Electronic notice, if the notice provided is |
597 | consistent with the provisions regarding electronic records and |
598 | signatures set forth in 15 U.S.C. s. 7001; or |
599 | (c) Substitute notice, if the person demonstrates that the |
600 | cost of providing notice would exceed $250,000, the affected |
601 | class of subject persons to be notified exceeds 500,000, or the |
602 | person does not have sufficient contact information. Substitute |
603 | notice shall consist of all of the following: |
604 | 1. Electronic mail or email notice when the person has an |
605 | electronic mail or email address for the subject persons. |
606 | 2. Conspicuous posting of the notice on the web page of |
607 | the person, if the person maintains a web page. |
608 | 3. Notification to major statewide media. |
609 | (7) For purposes of this section, the term "unauthorized |
610 | person" means any person who does not have permission from, or a |
611 | password issued by, the person who stores the computerized data |
612 | to acquire such data, but does not include any individual to |
613 | whom the personal information pertains. |
614 | (8) For purposes of this section, the term "person" means |
615 | a person as defined in s. 1.01(3). For purposes of this section, |
616 | the State of Florida, as well as any of its agencies or |
617 | political subdivisions, and any of the agencies of its political |
618 | subdivisions, constitutes a person. |
619 | (9) Notwithstanding subsection (6), a person who |
620 | maintains: |
621 | (a) The person's own notification procedures as part of an |
622 | information security or privacy policy for the treatment of |
623 | personal information, which procedures are otherwise consistent |
624 | with the timing requirements of this part; or |
625 | (b) A notification procedure pursuant to the rules, |
626 | regulations, procedures, or guidelines established by the |
627 | person's primary or functional federal regulator, |
628 |
|
629 | shall be deemed to be in compliance with the notification |
630 | requirements of this section if the person notifies subject |
631 | persons in accordance with the person's policies or the rules, |
632 | regulations, procedures, or guidelines established by the |
633 | primary or functional federal regulator in the event of a breach |
634 | of security of the system. |
635 | (10)(a) Notwithstanding subsection (2), notification is |
636 | not required if, after an appropriate investigation and after |
637 | consultation with relevant federal, state, and local agencies |
638 | responsible for law enforcement, the person reasonably |
639 | determines that the breach has not and will not likely result in |
640 | harm to the individuals whose personal information has been |
641 | acquired and accessed. Such a determination must be documented |
642 | in writing and the documentation must be maintained for 5 years. |
643 | (b) Any person required to document a failure to notify |
644 | affected persons who fails to document the failure as required |
645 | in this subsection or who, if documentation was created, fails |
646 | to maintain the documentation for the full 5 years as required |
647 | in this subsection is liable for an administrative fine in the |
648 | amount of up to $50,000 for such failure. |
649 | (c) The administrative sanctions outlined in this |
650 | subsection shall not apply in the case of personal information |
651 | in the custody of any governmental agency or subdivision, unless |
652 | that governmental agency or subdivision has entered into a |
653 | contract with a contractor or third-party administrator to |
654 | provide governmental services. In such case the contractor or |
655 | third-party administrator shall be a person to whom the |
656 | administrative sanctions outlined in this subsection would |
657 | apply, although such contractor or third-party administrator |
658 | found in violation of the documentation and maintenance of |
659 | documentation requirements in this subsection would not have an |
660 | action for contribution or set-off available against the |
661 | employing agency or subdivision. |
662 | (11) The Department of Legal Affairs may institute |
663 | proceedings to assess and collect the fines provided in this |
664 | section. |
665 | Section 10. No entity may accumulate or report a |
666 | consumer's drug test results with any of their other personal |
667 | data except for the name and social security number or driver's |
668 | license number or Florida identification card number of the |
669 | consumer. |
670 | Section 11. If any provision of this act or its |
671 | application to any person or circumstance is held invalid, the |
672 | invalidity does not affect other provisions or applications of |
673 | the act which can be given effect without the invalid provision |
674 | or application, and to this end the provisions of this act are |
675 | severable. |
676 | Section 12. This act shall take effect July 1, 2005. |