HB 0129CS

CHAMBER ACTION




1The Justice Appropriations Committee recommends the following:
2
3     Council/Committee Substitute
4     Remove the entire bill and insert:
5
6
A bill to be entitled
7An act relating to consumer protection; creating s.
8501.165, F.S.; prohibiting the use of deception to obtain
9certain personal information for commercial solicitation
10purposes; providing that such acts are deceptive trade
11practices or unfair methods of competition; providing
12penalties; amending s. 501.2075, F.S.; providing an
13exception to a civil penalty; creating s. 501.2076, F.S.;
14prohibiting falsely representing oneself as being
15affiliated with a law enforcement or firefighting agency or
16public utility; providing a penalty; providing that a
17violation of s. 817.568, F.S., relating to the criminal use
18of personal identification information, is an unfair or
19deceptive act or practice or unfair method of competition
20in violation of part II of ch. 501, F.S.; providing
21penalties; amending ss. 501.203 and 501.204, F.S.; changing
22obsolete dates; reenacting and amending s. 501.207, F.S.,
23relating to remedies of the enforcing authority under the
24Florida Deceptive and Unfair Trade Practices Act; providing
25that the court may order actions brought under that act on
26behalf of an enterprise; amending s. 817.568, F.S.;
27including other information within the definition of the
28term "personal identification information"; defining the
29term "counterfeit or fictitious personal identification
30information"; revising criminal penalties relating to the
31offense of fraudulently using, or possessing with intent to
32fraudulently use, personal identification information;
33providing minimum mandatory terms of imprisonment; creating
34the offenses of willfully and fraudulently using, or
35possessing with intent to fraudulently use, personal
36identification information concerning a deceased
37individual; providing criminal penalties; providing for
38minimum mandatory terms of imprisonment; creating the
39offense of willfully and fraudulently creating or using, or
40possessing with intent to fraudulently use, counterfeit or
41fictitious personal identification information; providing
42criminal penalties; providing for reclassification of
43offenses under certain circumstances; providing for
44reduction or suspension of sentences under certain
45circumstances; creating s. 817.5681, F.S.; requiring
46business persons maintaining computerized data that
47includes personal information to provide notice of breaches
48of system security under certain circumstances; providing
49requirements; providing for administrative fines; providing
50exceptions and limitations; authorizing delays of such
51disclosures under certain circumstances; providing
52definitions; providing for alternative notice methods;
53specifying conditions of compliance for persons maintaining
54certain alternative notification procedures; specifying
55conditions under which notification is not required;
56providing requirements for documentation and maintenance of
57documentation; providing an administrative fine for failing
58to document certain failures to comply; providing for
59application of administrative sanctions to certain persons
60under certain circumstances; authorizing the Department of
61Legal Affairs to institute proceedings to assess and
62collect fines; providing that no entity may accumulate or
63report a consumer's drug test results with any of their
64other personal data; providing exceptions; providing for
65severability; providing an effective date.
66
67Be It Enacted by the Legislature of the State of Florida:
68
69     Section 1.  Section 501.165, Florida Statutes, is created
70to read:
71     501.165  Obtaining personal information for commercial
72solicitation.--Any person who intentionally uses deceptive
73practices or means to obtain another person's address, telephone
74number, or social security number and uses it to engage in
75commercial solicitation, or provides it to another person for
76purposes of commercial solicitation, commits an unfair or
77deceptive act or practice or unfair method of competition in
78violation of part II of this chapter, and is subject to the
79penalties and remedies provided for such violation, in addition
80to remedies otherwise available for such conduct.
81     Section 2.  Section 501.2075, Florida Statutes, is amended
82to read:
83     501.2075  Civil penalty.--Except as provided in s. 501.2076
84or s. 501.2077, any person, firm, corporation, association, or
85entity, or any agent or employee of the foregoing, who is
86willfully using, or has willfully used, a method, act, or
87practice declared unlawful under s. 501.204, or who is willfully
88violating any of the rules of the department adopted under this
89part, is liable for a civil penalty of not more than $10,000 for
90each such violation.  Willful violations occur when the person
91knew or should have known that his or her conduct was unfair or
92deceptive or prohibited by rule.  This civil penalty may be
93recovered in any action brought under this part by the enforcing
94authority; or the enforcing authority may terminate any
95investigation or action upon agreement by the person, firm,
96corporation, association, or entity, or the agent or employee of
97the foregoing, to pay a stipulated civil penalty.  The
98department or the court may waive any such civil penalty if the
99person, firm, corporation, association, or entity, or the agent
100or employee of the foregoing, has previously made full
101restitution or reimbursement or has paid actual damages to the
102consumers or governmental entities who have been injured by the
103unlawful act or practice or rule violation.  If civil penalties
104are assessed in any litigation, the enforcing authority is
105entitled to reasonable attorney's fees and costs.  A civil
106penalty so collected shall accrue to the state and shall be
107deposited as received into the General Revenue Fund unallocated.
108     Section 3.  Section 501.2076, Florida Statutes, is created
109to read:
110     501.2076  Misrepresentations; law enforcement,
111firefighters, or public utilities.--Any person who engages in a
112deceptive and unfair trade practice with the intent to deceive
113another person into believing that he or she is affiliated with
114a law enforcement agency, firefighting agency, or public utility
115is subject to a civil penalty not to exceed $15,000 for each
116violation.
117     Section 4.  A person who violates or fails to comply with
118any provision of section 817.568, Florida Statutes, commits an
119unfair or deceptive act or practice or unfair method of
120competition in violation of part II of chapter 501, Florida
121Statutes, and is subject to the penalties and remedies provided
122for such violation, in addition to remedies otherwise available
123for such conduct.
124     Section 5.  Subsection (3) of section 501.203, Florida
125Statutes, is amended to read:
126     501.203  Definitions.--As used in this chapter, unless the
127context otherwise requires, the term:
128     (3)  "Violation of this part" means any violation of this
129act or the rules adopted under this act and may be based upon
130any of the following as of July 1, 2005 2001:
131     (a)  Any rules promulgated pursuant to the Federal Trade
132Commission Act, 15 U.S.C. ss. 41 et seq.;
133     (b)  The standards of unfairness and deception set forth
134and interpreted by the Federal Trade Commission or the federal
135courts;
136     (c)  Any law, statute, rule, regulation, or ordinance which
137proscribes unfair methods of competition, or unfair, deceptive,
138or unconscionable acts or practices.
139     Section 6.  Subsection (2) of section 501.204, Florida
140Statutes, is amended to read:
141     501.204  Unlawful acts and practices.--
142     (2)  It is the intent of the Legislature that, in
143construing subsection (1), due consideration and great weight
144shall be given to the interpretations of the Federal Trade
145Commission and the federal courts relating to s. 5(a)(1) of the
146Federal Trade Commission Act, 15 U.S.C. s. 45(a)(1) as of July
1471, 2005 2001.
148     Section 7.  Subsection (1) of section 501.207, Florida
149Statutes, is reenacted, and subsection (3) of that section is
150amended 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
154or practice violates this part.
155     (b)  An action to enjoin any person who has violated, is
156violating, or is otherwise likely to violate, this part.
157     (c)  An action on behalf of one or more consumers or
158governmental entities for the actual damages caused by an act or
159practice in violation of this part. However, damages are not
160recoverable under this section against a retailer who has in
161good faith engaged in the dissemination of claims of a
162manufacturer or wholesaler without actual knowledge that it
163violated this part.
164     (3)  Upon motion of the enforcing authority or any
165interested party in any action brought under subsection (1), the
166court may make appropriate orders, including, but not limited
167to, appointment of a general or special magistrate or receiver
168or sequestration or freezing of assets, to reimburse consumers
169or governmental entities found to have been damaged; to carry
170out a transaction in accordance with the reasonable expectations
171of consumers or governmental entities; to strike or limit the
172application of clauses of contracts to avoid an unconscionable
173result; to bring actions in the name of and on behalf of the
174defendant enterprise; to order any defendant to divest herself
175or himself of any interest in any enterprise, including real
176estate; to impose reasonable restrictions upon the future
177activities of any defendant to impede her or him from engaging
178in or establishing the same type of endeavor; to order the
179dissolution or reorganization of any enterprise; or to grant
180legal, equitable, or other appropriate relief. The court may
181assess the expenses of a general or special magistrate or
182receiver against a person who has violated, is violating, or is
183otherwise likely to violate this part. Any injunctive order,
184whether temporary or permanent, issued by the court shall be
185effective throughout the state unless otherwise provided in the
186order.
187     Section 8.  Section 817.568, Florida Statutes, is amended
188to read:
189     817.568  Criminal use of personal identification
190information.--
191     (1)  As used in this section, the term:
192     (a)  "Access device" means any card, plate, code, account
193number, electronic serial number, mobile identification number,
194personal identification number, or other telecommunications
195service, equipment, or instrument identifier, or other means of
196account access that can be used, alone or in conjunction with
197another access device, to obtain money, goods, services, or any
198other thing of value, or that can be used to initiate a transfer
199of funds, other than a transfer originated solely by paper
200instrument.
201     (b)  "Authorization" means empowerment, permission, or
202competence to act.
203     (c)  "Harass" means to engage in conduct directed at a
204specific person that is intended to cause substantial emotional
205distress to such person and serves no legitimate purpose.
206"Harass" does not mean to use personal identification
207information for accepted commercial purposes. The term does not
208include constitutionally protected conduct such as organized
209protests or the use of personal identification information for
210accepted commercial purposes.
211     (d)  "Individual" means a single human being and does not
212mean a firm, association of individuals, corporation,
213partnership, joint venture, sole proprietorship, or any other
214entity.
215     (e)  "Person" means a "person" as defined in s. 1.01(3).
216     (f)  "Personal identification information" means any name
217or number that may be used, alone or in conjunction with any
218other information, to identify a specific individual, including
219any:
220     1.  Name, postal or electronic mail address, telephone
221number, social security number, date of birth, mother's maiden
222name, official state-issued or United States-issued driver's
223license or identification number, alien registration number,
224government passport number, employer or taxpayer identification
225number, Medicaid or food stamp account number, or bank account
226number, or credit or debit card number, or personal
227identification number or code assigned to the holder of a debit
228card by the issuer to permit authorized electronic use of such
229card;
230     2.  Unique biometric data, such as fingerprint, voice
231print, retina or iris image, or other unique physical
232representation;
233     3.  Unique electronic identification number, address, or
234routing code; or
235     4.  Medical records;
236     5.4.  Telecommunication identifying information or access
237device; or.
238     6.  Other number or information that can be used to access
239a person's financial resources.
240     (g)  "Counterfeit or fictitious personal identification
241information" means any counterfeit, fictitious, or fabricated
242information in the similitude of the data outlined in paragraph
243(f) that, although not truthful or accurate, would in context
244lead a reasonably prudent person to credit its truthfulness and
245accuracy.
246     (2)(a)  Any person who willfully and without authorization
247fraudulently uses, or possesses with intent to fraudulently use,
248personal identification information concerning an individual
249without first obtaining that individual's consent, commits the
250offense of fraudulent use of personal identification
251information, which is a felony of the third degree, punishable
252as provided in s. 775.082, s. 775.083, or s. 775.084.
253     (b)  Any person who willfully and without authorization
254fraudulently uses personal identification information concerning
255an individual without first obtaining that individual's consent
256commits a felony of the second degree, punishable as provided in
257s. 775.082, s. 775.083, or s. 775.084, if the pecuniary benefit,
258the value of the services received, the payment sought to be
259avoided, or the amount of the injury or fraud perpetrated is
260$5,000 or more or if the person fraudulently uses the personal
261identification information of 10 or more individuals, but fewer
262than 20 individuals, without their consent. Notwithstanding any
263other provision of law, the court shall sentence any person
264convicted of committing the offense described in this paragraph
265to a mandatory minimum sentence of 3 years' imprisonment.
266     (c)  Any person who willfully and without authorization
267fraudulently uses personal identification information concerning
268an individual without first obtaining that individual's consent
269commits a felony of the first degree, punishable as provided in
270s. 775.082, s. 775.083, or s. 775.084, if the pecuniary benefit,
271the value of the services received, the payment sought to be
272avoided, or the amount of the injury or fraud perpetrated is
273$50,000 or more or if the person fraudulently uses the personal
274identification information of 20 or more individuals, but fewer
275than 30 individuals, without their consent. Notwithstanding any
276other provision of law, the court shall sentence any person
277convicted of committing the offense described in this paragraph:
278     1.  to a mandatory minimum sentence of 5 years'
279imprisonment. If the pecuniary benefit, the value of the
280services received, the payment sought to be avoided, or the
281amount of the injury or fraud perpetrated is $100,000 or more,
282or if the person fraudulently uses the personal identification
283information of 30 or more individuals without their consent,
284notwithstanding any other provision of law, the court shall
285sentence any person convicted of committing the offense
286described in this paragraph
287     2.  to a mandatory minimum sentence of 10 years'
288imprisonment, if the pecuniary benefit, the value of the
289services received, the payment sought to be avoided, or the
290amount of the injury or fraud perpetrated is $100,000 or more or
291if the person fraudulently uses the personal identification
292information of 30 or more individuals without their consent.
293     (3)  Neither paragraph (2)(b) nor paragraph (2)(c) prevents
294a court from imposing a greater sentence of incarceration as
295authorized by law. If the minimum mandatory terms of
296imprisonment imposed under paragraph (2)(b) or paragraph (2)(c)
297exceed the maximum sentences authorized under s. 775.082, s.
298775.084, or the Criminal Punishment Code under chapter 921, the
299mandatory minimum sentence must be imposed. If the mandatory
300minimum terms of imprisonment under paragraph (2)(b) or
301paragraph (2)(c) are less than the sentence that could be
302imposed under s. 775.082, s. 775.084, or the Criminal Punishment
303Code under chapter 921, the sentence imposed by the court must
304include the mandatory minimum term of imprisonment as required
305by paragraph (2)(b) or paragraph (2)(c).
306     (4)  Any person who willfully and without authorization
307possesses, uses, or attempts to use personal identification
308information concerning an individual without first obtaining
309that individual's consent, and who does so for the purpose of
310harassing that individual, commits the offense of harassment by
311use of personal identification information, which is a
312misdemeanor of the first degree, punishable as provided in s.
313775.082 or s. 775.083.
314     (5)  If an offense prohibited under this section was
315facilitated or furthered by the use of a public record, as
316defined in s. 119.011, the offense is reclassified to the next
317higher degree as follows:
318     (a)  A misdemeanor of the first degree is reclassified as a
319felony of the third degree.
320     (b)  A felony of the third degree is reclassified as a
321felony of the second degree.
322     (c)  A felony of the second degree is reclassified as a
323felony of the first degree.
324
325For purposes of sentencing under chapter 921 and incentive gain-
326time eligibility under chapter 944, a felony offense that is
327reclassified under this subsection is ranked one level above the
328ranking under s. 921.0022 of the felony offense committed, and a
329misdemeanor offense that is reclassified under this subsection
330is ranked in level 2 of the offense severity ranking chart in s.
331921.0022.
332     (6)  Any person who willfully and without authorization
333fraudulently uses personal identification information concerning
334an individual who is less than 18 years of age without first
335obtaining the consent of that individual or of his or her legal
336guardian commits a felony of the second degree, punishable as
337provided in s. 775.082, s. 775.083, or s. 775.084.
338     (7)  Any person who is in the relationship of parent or
339legal guardian, or who otherwise exercises custodial authority
340over an individual who is less than 18 years of age, who
341willfully and fraudulently uses personal identification
342information of that individual commits a felony of the second
343degree, punishable as provided in s. 775.082, s. 775.083, or s.
344775.084.
345     (8)(a)  Any person who willfully and fraudulently uses, or
346possesses with intent to fraudulently use, personal
347identification information concerning a deceased individual
348commits the offense of fraudulent use or possession with intent
349to use personal identification information of a deceased
350individual, a felony of the third degree, punishable as provided
351in s. 775.082, s. 775.083, or s. 775.084.
352     (b)  Any person who willfully and fraudulently uses
353personal identification information concerning a deceased
354individual commits a felony of the second degree, punishable as
355provided in s. 775.082, s. 775.083, or s. 775.084, if the
356pecuniary benefit, the value of the services received, the
357payment sought to be avoided, or the amount of injury or fraud
358perpetrated is $5,000 or more, or if the person fraudulently
359uses the personal identification information of 10 or more but
360fewer than 20 deceased individuals. Notwithstanding any other
361provision of law, the court shall sentence any person convicted
362of committing the offense described in this paragraph to a
363mandatory minimum sentence of 3 years' imprisonment.
364     (c)  Any person who willfully and fraudulently uses
365personal identification information concerning a deceased
366individual commits the offense of aggravated fraudulent use of
367the personal identification information of multiple deceased
368individuals, a felony of the first degree, punishable as
369provided in s. 775.082, s. 775.083, or s. 775.084, if the
370pecuniary benefit, the value of the services received, the
371payment sought to be avoided, or the amount of injury or fraud
372perpetrated is $50,000 or more, or if the person fraudulently
373uses the personal identification information of 20 or more but
374fewer than 30 deceased individuals. Notwithstanding any other
375provision of law, the court shall sentence any person convicted
376of the offense described in this paragraph to a minimum
377mandatory sentence of 5 years' imprisonment. If the pecuniary
378benefit, the value of the services received, the payment sought
379to be avoided, or the amount of the injury or fraud perpetrated
380is $100,000 or more, or if the person fraudulently uses the
381personal identification information of 30 or more deceased
382individuals, notwithstanding any other provision of law, the
383court shall sentence any person convicted of an offense
384described in this paragraph to a mandatory minimum sentence of
38510 years' imprisonment.
386     (9)  Any person who willfully and fraudulently creates or
387uses, or possesses with intent to fraudulently use, counterfeit
388or fictitious personal identification information concerning a
389fictitious individual, or concerning a real individual without
390first obtaining that real individual's consent, with intent to
391use such counterfeit or fictitious personal identification
392information for the purpose of committing or facilitating the
393commission of a fraud on another person, commits the offense of
394fraudulent creation or use, or possession with intent to
395fraudulently use, counterfeit or fictitious personal
396identification information, a felony of the third degree,
397punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
398     (10)  Any person who commits an offense described in this
399section and for the purpose of obtaining or using personal
400identification information misrepresents himself or herself to
401be a law enforcement officer; an employee or representative of a
402bank, credit card company, credit counseling company, or credit
403reporting agency; or any person who wrongfully represents that
404he or she is seeking to assist the victim with a problem with
405the victim's credit history shall have the offense reclassified
406as follows:
407     (a)  In the case of a misdemeanor, the offense is
408reclassified as a felony of the third degree.
409     (b)  In the case of a felony of the third degree, the
410offense is reclassified as a felony of the second degree.
411     (c)  In the case of a felony of the second degree, the
412offense is reclassified as a felony of the first degree.
413     (d)  In the case of a felony of the first degree or a
414felony of the first degree punishable by a term of imprisonment
415not exceeding life, the offense is reclassified as a life
416felony.
417
418For purposes of sentencing under chapter 921, a felony offense
419that is reclassified under this subsection is ranked one level
420above the ranking under s. 921.0022 or s. 921.0023 of the felony
421offense committed, and a misdemeanor offense that is
422reclassified under this subsection is ranked in level 2 of the
423offense severity ranking chart.
424     (11)  The prosecutor may move the sentencing court to
425reduce or suspend the sentence of any person who is convicted of
426a violation of this section and who provides substantial
427assistance in the identification, arrest, or conviction of any
428of that person's accomplices, accessories, coconspirators, or
429principals or of any other person engaged in fraudulent
430possession or use of personal identification information. The
431arresting agency shall be given an opportunity to be heard in
432aggravation or mitigation in reference to any such motion. Upon
433good cause shown, the motion may be filed and heard in camera.
434The judge hearing the motion may reduce or suspend the sentence
435if the judge finds that the defendant rendered such substantial
436assistance.
437     (12)(8)  This section does not prohibit any lawfully
438authorized investigative, protective, or intelligence activity
439of a law enforcement agency of this state or any of its
440political subdivisions, of any other state or its political
441subdivisions, or of the Federal Government or its political
442subdivisions.
443     (13)(9)(a)  In sentencing a defendant convicted of an
444offense under this section, the court may order that the
445defendant make restitution under pursuant to s. 775.089 to any
446victim of the offense. In addition to the victim's out-of-pocket
447costs, such restitution may include payment of any other costs,
448including attorney's fees incurred by the victim in clearing the
449victim's credit history or credit rating, or any costs incurred
450in connection with any civil or administrative proceeding to
451satisfy any debt, lien, or other obligation of the victim
452arising as the result of the actions of the defendant.
453     (b)  The sentencing court may issue such orders as are
454necessary to correct any public record that contains false
455information given in violation of this section.
456     (14)(10)  Prosecutions for violations of this section may
457be brought on behalf of the state by any state attorney or by
458the statewide prosecutor.
459     (15)(11)  The Legislature finds that, in the absence of
460evidence to the contrary, the location where a victim gives or
461fails to give consent to the use of personal identification
462information is the county where the victim generally resides.
463     (16)(12)  Notwithstanding any other provision of law, venue
464for the prosecution and trial of violations of this section may
465be commenced and maintained in any county in which an element of
466the offense occurred, including the county where the victim
467generally resides.
468     (17)(13)  A prosecution of an offense prohibited under
469subsection (2), subsection (6), or subsection (7) must be
470commenced within 3 years after the offense occurred. However, a
471prosecution may be commenced within 1 year after discovery of
472the offense by an aggrieved party, or by a person who has a
473legal duty to represent the aggrieved party and who is not a
474party to the offense, if such prosecution is commenced within 5
475years after the violation occurred.
476     Section 9.  Section 817.5681, Florida Statutes, is created
477to read:
478     817.5681  Breach of security concerning confidential
479personal information in third-party possession; administrative
480penalties.--
481     (1)(a)  Any person who conducts business in this state and
482maintains computerized data in a system that includes personal
483information shall provide notice of any breach of the security
484of the system, following a determination of the breach, to any
485resident of this state whose unencrypted personal information
486was, or is reasonably believed to have been, acquired by an
487unauthorized person. The notification shall be made without
488unreasonable delay, consistent with the legitimate needs of law
489enforcement, as provided in subsection (3) and paragraph
490(10)(a), or subject to any measures necessary to determine the
491presence, nature, and scope of the breach and restore the
492reasonable integrity of the system. Notification must be made no
493later than 45 days following the determination of the breach
494unless otherwise provided in this section.
495     (b)  Any person required to make notification under
496paragraph (a) who fails to do so within 45 days following the
497determination of a breach or receipt of notice from law
498enforcement as provided in subsection (3) is liable for an
499administrative fine not to exceed $500,000, as follows:
500     1.  In the amount of $1,000 for each day the breach goes
501undisclosed for up to 30 days and, thereafter, $50,000 for each
50230-day period or portion thereof for up to 180 days.
503     2.  If notification is not made within 180 days, any person
504required to make notification under paragraph (a) who fails to
505do so is subject to an administrative fine of up to $500,000.
506     (c)  The administrative sanctions for failure to notify
507provided in this subsection shall not apply in the case of
508personal information in the custody of any governmental agency
509or subdivision, unless that governmental agency or subdivision
510has entered into a contract with a contractor or third-party
511administrator to provide governmental services. In such case,
512the contractor or third-party administrator shall be a person to
513whom the administrative sanctions provided in this subsection
514would apply, although such contractor or third-party
515administrator found in violation of the notification
516requirements provided in this subsection would not have an
517action for contribution or set-off available against the
518employing agency or subdivision.
519     (2)(a)  Any person who maintains computerized data that
520includes personal information on behalf of another business
521entity shall disclose to the business entity for which the
522information is maintained any breach of the security of the
523system as soon as practicable, but no later than 10 days
524following the determination, if the personal information was, or
525is reasonably believed to have been, acquired by an unauthorized
526person. The person who maintains the data on behalf of another
527business entity and the business entity on whose behalf the data
528is maintained may agree who will provide the notice, if any is
529required, as provided in paragraph (1)(a), provided only a
530single notice for each breach of the security of the system
531shall be required. If agreement regarding notification cannot be
532reached, the person who has the direct business relationship
533with the resident of this state shall be subject to the
534provisions of paragraph (1)(a).
535     (b)  Any person required to disclose to a business entity
536under paragraph (a) who fails to do so within 10 days after the
537determination of a breach or receipt of notification from law
538enforcement as provided in subsection (3) is liable for an
539administrative fine not to exceed $500,000, as follows:
540     1.  In the amount of $1,000 for each day the breach goes
541undisclosed for up to 30 days and, thereafter, $50,000 for each
54230-day period or portion thereof for up to 180 days.
543     2.  If disclosure is not made within 180 days, any person
544required to make disclosures under paragraph (a) who fails to do
545so is subject to an administrative fine of up to $500,000.
546     (c)  The administrative sanctions for nondisclosure
547provided in this subsection shall not apply in the case of
548personal information in the custody of any governmental agency
549or subdivision unless that governmental agency or subdivision
550has entered into a contract with a contractor or third-party
551administrator to provide governmental services. In such case,
552the contractor or third-party administrator shall be a person to
553whom the administrative sanctions provided in this subsection
554would apply, although such contractor or third-party
555administrator found in violation of the nondisclosure
556restrictions in this subsection would not have an action for
557contribution or set-off available against the employing agency
558or subdivision.
559     (3)  The notification required by this section may be
560delayed upon a request by law enforcement if a law enforcement
561agency determines that the notification will impede a criminal
562investigation. The notification time period required by this
563section shall commence after the person receives notice from the
564law enforcement agency that the notification will not compromise
565the investigation.
566     (4)  For purposes of this section, the terms "breach" and
567"breach of the security of the system" mean unlawful and
568unauthorized acquisition of computerized data that materially
569compromises the security, confidentiality, or integrity of
570personal information maintained by the person. Good faith
571acquisition of personal information by an employee or agent of
572the person is not a breach or breach of the security of the
573system, provided the information is not used for a purpose
574unrelated to the business or subject to further unauthorized
575use.
576     (5)  For purposes of this section, the term "personal
577information" means an individual's first name, first initial and
578last name, or any middle name and last name, in combination with
579any one or more of the following data elements when the data
580elements are not encrypted:
581     (a)  Social security number.
582     (b)  Driver's license number or Florida Identification Card
583number.
584     (c)  Account number, credit card number, or debit card
585number, in combination with any required security code, access
586code, or password that would permit access to an individual's
587financial account.
588
589For purposes of this section, the term "personal information"
590does not include publicly available information that is lawfully
591made available to the general public from federal, state, or
592local government records or widely distributed media.
593     (6)  For purposes of this section, notice may be provided
594by one of the following methods:
595     (a)  Written notice;
596     (b)  Electronic notice, if the notice provided is
597consistent with the provisions regarding electronic records and
598signatures set forth in 15 U.S.C. s. 7001; or
599     (c)  Substitute notice, if the person demonstrates that the
600cost of providing notice would exceed $250,000, the affected
601class of subject persons to be notified exceeds 500,000, or the
602person does not have sufficient contact information. Substitute
603notice shall consist of all of the following:
604     1.  Electronic mail or email notice when the person has an
605electronic mail or email address for the subject persons.
606     2.  Conspicuous posting of the notice on the web page of
607the 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
610person" means any person who does not have permission from, or a
611password issued by, the person who stores the computerized data
612to acquire such data, but does not include any individual to
613whom the personal information pertains.
614     (8)  For purposes of this section, the term "person" means
615a person as defined in s. 1.01(3). For purposes of this section,
616the State of Florida, as well as any of its agencies or
617political subdivisions, and any of the agencies of its political
618subdivisions, constitutes a person.
619     (9)  Notwithstanding subsection (6), a person who
620maintains:
621     (a)  The person's own notification procedures as part of an
622information security or privacy policy for the treatment of
623personal information, which procedures are otherwise consistent
624with the timing requirements of this part; or
625     (b)  A notification procedure pursuant to the rules,
626regulations, procedures, or guidelines established by the
627person's primary or functional federal regulator,
628
629shall be deemed to be in compliance with the notification
630requirements of this section if the person notifies subject
631persons in accordance with the person's policies or the rules,
632regulations, procedures, or guidelines established by the
633primary or functional federal regulator in the event of a breach
634of security of the system.
635     (10)(a)  Notwithstanding subsection (2), notification is
636not required if, after an appropriate investigation and after
637consultation with relevant federal, state, and local agencies
638responsible for law enforcement, the person reasonably
639determines that the breach has not and will not likely result in
640harm to the individuals whose personal information has been
641acquired and accessed. Such a determination must be documented
642in writing and the documentation must be maintained for 5 years.
643     (b)  Any person required to document a failure to notify
644affected persons who fails to document the failure as required
645in this subsection or who, if documentation was created, fails
646to maintain the documentation for the full 5 years as required
647in this subsection is liable for an administrative fine in the
648amount of up to $50,000 for such failure.
649     (c)  The administrative sanctions outlined in this
650subsection shall not apply in the case of personal information
651in the custody of any governmental agency or subdivision, unless
652that governmental agency or subdivision has entered into a
653contract with a contractor or third-party administrator to
654provide governmental services. In such case the contractor or
655third-party administrator shall be a person to whom the
656administrative sanctions outlined in this subsection would
657apply, although such contractor or third-party administrator
658found in violation of the documentation and maintenance of
659documentation requirements in this subsection would not have an
660action for contribution or set-off available against the
661employing agency or subdivision.
662     (11)  The Department of Legal Affairs may institute
663proceedings to assess and collect the fines provided in this
664section.
665     Section 10.  No entity may accumulate or report a
666consumer's drug test results with any of their other personal
667data except for the name and social security number or driver's
668license number or Florida identification card number of the
669consumer.
670     Section 11.  If any provision of this act or its
671application to any person or circumstance is held invalid, the
672invalidity does not affect other provisions or applications of
673the act which can be given effect without the invalid provision
674or application, and to this end the provisions of this act are
675severable.
676     Section 12.  This act shall take effect July 1, 2005.


CODING: Words stricken are deletions; words underlined are additions.