Senate Bill sb1768

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    Florida Senate - 2005                                  SB 1768

    By Senator Crist





    12-885A-05                                              See HB

  1                      A bill to be entitled

  2         An act relating to online dating services;

  3         providing definitions; requiring criminal

  4         background checks before allowing a member of a

  5         dating service to perform certain acts;

  6         providing exceptions; requiring disclosures in

  7         certain circumstances; requiring each service

  8         to establish a policy concerning criminal

  9         background check results; providing minimum

10         requirements for a policy; requiring

11         opportunities for certain persons to review the

12         policy; requiring a specified disclosure on the

13         profile of a person having a criminal

14         conviction; providing for civil actions for

15         violations of the act; providing for damages,

16         including specified liquidated damages, costs,

17         and attorney's fees; providing for actions by

18         the Attorney General to enforce the act;

19         providing specified immunity for the state;

20         providing for criminal violations of the act;

21         providing penalties; providing that specified

22         acts by operators do not violate the act;

23         providing an effective date.

24  

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

26  

27         Section 1.  Definitions.--As used in this act:

28         (1)  "Communicate" or "communicating" means free-form

29  text or real-time voice communication.

30  

31  

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    Florida Senate - 2005                                  SB 1768
    12-885A-05                                              See HB




 1         (2)  "Criminal background check" means a search for a

 2  person's felony and sexual offense convictions by one of the

 3  following means:

 4         (a)  Through the criminal history record system

 5  maintained by the Federal Bureau of Investigation based on

 6  fingerprint identification or any other method of positive

 7  identification used by the Federal Bureau of Investigation.

 8         (b)  Through the criminal history record systems

 9  maintained by each of the 50 states and the District of

10  Columbia.

11         (c)  Through a private vendor whose database contains

12  more than 170,000,000 criminal records, has substantially

13  national coverage, is updated at least once every 30 days, and

14  is operated and maintained in the United States.

15         (d)  Through a database search conducted by the Florida

16  Department of Law Enforcement and one of the searches provided

17  for in paragraphs (a)-(c).

18         (3)  "Member" means a person who is either a member or

19  who submits a profile or other information for the purpose of

20  dating, matrimonial, or social referral services to an online

21  dating service provider.

22         (4)  "Online dating service provider" or "provider"

23  means a person or organization engaged, directly or

24  indirectly, in the business of offering, promoting, or

25  providing access to dating, relationship, compatibility,

26  matrimonial, or social referral services primarily through the

27  Internet.

28         Section 2.  Criminal background check; required

29  disclosures.--

30  

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    Florida Senate - 2005                                  SB 1768
    12-885A-05                                              See HB




 1         (1)  An online dating service provider that provides

 2  services to residents of this state shall do one of the

 3  following:

 4         (a)  Conduct a criminal background check for each

 5  member using the online dating service before allowing that

 6  person to communicate with another person through the service.

 7         (b)  Disclose clearly and conspicuously, to all website

 8  visitors residing in this state, on the provider's homepage

 9  and all other pages where visitors or members first enter the

10  provider's website, on the profile page, and on all e-mails

11  sent through the service by communicating members, within the

12  top one-third of the webpage, that the online dating service

13  provider has not conducted criminal background checks under

14  paragraph (a). The disclosure shall state the following:

15  

16         "WARNING:  [NAME OF PROVIDER] HAS NOT CONDUCTED

17         FELONY OR SEXUAL OFFENSE BACKGROUND CHECKS ON

18         ITS MEMBERS."

19  

20         (c)  If the provider conducts a criminal background

21  check as provided in section 1(2)(b), display through a

22  readily accessible link on the provider's homepage, within the

23  top one-third of the webpage visible after selecting the

24  disclosure link, a conspicuous disclosure that states the

25  following:

26  

27         "WARNING:  BASED SOLELY ON THE NAME PROVIDED BY

28         THE MEMBER, [NAME OF PROVIDER] HAS CONDUCTED A

29         CRIMINAL BACKGROUND CHECK THROUGH THE CRIMINAL

30         HISTORY RECORD SYSTEMS MAINTAINED BY EACH OF

31         THE 50 STATES AND THE DISTRICT OF COLUMBIA."

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    Florida Senate - 2005                                  SB 1768
    12-885A-05                                              See HB




 1  

 2         (d)  If the provider conducts a criminal background

 3  check as provided in section 1(2)(c), display through a

 4  readily accessible link on the provider's homepage, within the

 5  top one-third of the webpage visible after selecting the

 6  disclosure link, a conspicuous disclosure that states the

 7  following:

 8  

 9         "WARNING:  BASED SOLELY ON THE NAME PROVIDED BY

10         THE MEMBER, [NAME OF PROVIDER] HAS CONDUCTED A

11         CRIMINAL DATABASE SEARCH THROUGH A PRIVATE

12         VENDOR WHOSE RECORDS MAY NOT INCLUDE ALL

13         CONVICTIONS FROM ALL JURISDICTIONS. CONTACT

14         [NAME OF PROVIDER] FOR INFORMATION REGARDING

15         WHICH JURISDICTIONS ARE INCLUDED."

16  

17         (e)1.  If the provider conducts a criminal background

18  check as provided in section 1(2)(d), display through a

19  readily accessible link on the provider's homepage, within the

20  top one-third of the webpage visible after selecting the

21  disclosure link, a conspicuous disclosure that states the

22  following:

23  

24         "WARNING:  BASED SOLELY ON THE NAME PROVIDED BY

25         THE MEMBER, [NAME OF PROVIDER] HAS CONDUCTED A

26         CRIMINAL DATABASE SEARCH THROUGH FLORIDA

27         RECORDS MAINTAINED BY THE FLORIDA DEPARTMENT OF

28         LAW ENFORCEMENT."

29  

30         2.  If the provider has made the required additional

31  search under section 1(2)(d) using the method provided in

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    Florida Senate - 2005                                  SB 1768
    12-885A-05                                              See HB




 1  section 1(2)(b) or section 1(2)(c), a sentence shall be added

 2  to the disclaimer as follows:

 3         a.  If the additional search was done pursuant to

 4  section 1(2)(b), add the following:

 5  

 6         "ADDITIONALLY, [NAME OF PROVIDER] HAS CONDUCTED

 7         A CRIMINAL BACKGROUND CHECK THROUGH THE

 8         CRIMINAL HISTORY RECORD SYSTEMS MAINTAINED BY

 9         EACH OF THE 50 STATES AND THE DISTRICT OF

10         COLUMBIA."

11  

12         b.  If the additional search was done pursuant to

13  section 1(2)(c), add the following:

14  

15         "ADDITIONALLY, [NAME OF PROVIDER] HAS CONDUCTED

16         A CRIMINAL BACKGROUND CHECK THROUGH A PRIVATE

17         VENDOR WHOSE RECORDS MAY NOT INCLUDE ALL

18         CONVICTIONS FROM ALL JURISDICTIONS. CONTACT

19         [NAME OF PROVIDER] FOR INFORMATION REGARDING

20         WHICH JURISDICTIONS ARE INCLUDED."

21  

22         (2)  An online dating service provider that conducts

23  criminal background checks shall update each criminal

24  background check at least once every 90 days.

25         Section 3.  Provider policy.--

26         (1)  Each online dating service provider shall

27  establish a policy that conforms to the requirements of this

28  act as to what actions the provider will initiate as a result

29  of information obtained through a criminal background check or

30  database search. At a minimum, the policy shall contain the

31  following:

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    Florida Senate - 2005                                  SB 1768
    12-885A-05                                              See HB




 1         (a)  An acknowledgement that criminal background checks

 2  are not a perfect safety solution and an acknowledgement that

 3  criminals may circumvent even the most sophisticated search

 4  technology.

 5         (b)  An acknowledgement that only felony convictions,

 6  not all arrests, are covered by the criminal background

 7  checks, unless the provider uses the Federal Bureau of

 8  Investigation database.

 9         (c)  An acknowledgement that first-time offenders can

10  commit crimes and will not have a prior criminal conviction.

11         (d)  A description of additional safety measures

12  reasonably designed to increase awareness of safer dating

13  practices.

14         (e)  A statement clearly describing whether the

15  provider excludes from its website all persons identified as

16  having a criminal conviction.

17         (2)  A copy of the policy established under subsection

18  (1) shall be made available to each person who applies for

19  membership with the provider.

20         (3)  The provider's homepage shall contain a link that

21  will allow a person to review the policy established under

22  subsection (1).

23         (4)  If a provider chooses not to exclude from its

24  website all persons identified as having a criminal

25  conviction, then the provider shall prominently disclose on

26  the profile of each such person when shown or sent to a member

27  residing in this state the following warning:

28  

29         "WARNING:  THIS PERSON HAS BEEN IDENTIFIED AS

30         HAVING A PRIOR CRIMINAL CONVICTION."

31  

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    Florida Senate - 2005                                  SB 1768
    12-885A-05                                              See HB




 1         Section 4.  Civil remedies.--

 2         (1)  A civil action may be brought by a person who

 3  suffers damages as a result of a violation of this act.

 4         (2)  In an action brought under this section, a person

 5  who suffers damages as a result of a violation of this act may

 6  recover actual costs, actual and reasonable attorney's fees,

 7  and the greater of the following:

 8         (a)  Actual damages; or

 9         (b)  Damages of $250 for each day for which the

10  requirements of this act are not met.

11         (3)  If the online dating service provider fails to

12  meet the disclosure requirements of this act for any of its

13  members or visitors, such failure constitutes a separate

14  violation for each member or visitor for whom the required

15  disclosure was not provided.

16         (4)  A civil action may be brought by the Attorney

17  General against a violator of this act as provided in this

18  section. However, existence of the right of action in this

19  subsection does not impose any liability on the state or its

20  agents.

21         Section 5.  Criminal violations.--

22         (1)  A person who violates this act commits a

23  misdemeanor of the first degree, punishable as provided in s.

24  775.082 or s. 775.083, except that, as provided in s.

25  775.083(1)(g), a fine of $250 is authorized for each day for

26  which the requirements of this act are not met.

27         (2)  If the online dating service provider fails to

28  meet the disclosure requirements of this act for any of its

29  members or visitors, each such failure constitutes a separate

30  violation for each person for whom the required disclosure was

31  not provided.

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    Florida Senate - 2005                                  SB 1768
    12-885A-05                                              See HB




 1         Section 6.  Provider acting as intermediary.--A

 2  provider does not violate this act as a result of being an

 3  intermediary between the sender and recipient in the

 4  transmission of a message that violates this act.

 5         Section 7.  This act shall take effect upon becoming a

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