Senate Bill sb0284c1

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    Florida Senate - 2005                            CS for SB 284

    By the Committee on Judiciary; and Senators Aronberg, Fasano,
    Lynn, Crist and Miller




    590-2078-05

  1                      A bill to be entitled

  2         An act relating to consumer protection;

  3         creating s. 501.165, F.S.; prohibiting the use

  4         of deception to obtain certain personal

  5         information for commercial solicitation

  6         purposes; providing that such acts are

  7         deceptive trade practices or unfair methods of

  8         competition; providing penalties; creating s.

  9         501.167, F.S.; prescribing duties of persons

10         and businesses holding computerized personal

11         information upon discovery of a breach of

12         security of the system on which such data are

13         maintained; defining terms; prescribing forms

14         that notification of the breach must take;

15         providing exceptions; providing remedies;

16         amending s. 501.2075, F.S.; providing an

17         exception to a civil penalty; creating s.

18         501.2076, F.S.; prohibiting falsely

19         representing oneself as being affiliated with a

20         law enforcement or firefighting agency or

21         public utility; providing a penalty; amending

22         s. 501.2077, F.S.; providing that it is an

23         unfair or deceptive act to cause a handicapped

24         person or certain senior citizens to waive

25         certain benefits or rights; providing an

26         exception; providing that a violation of s.

27         817.568, F.S., relating to the criminal use of

28         personal identification information, is an

29         unfair or deceptive act or practice or unfair

30         method of competition in violation of part II

31         of ch. 501, F.S.; providing penalties; amending

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 1         ss. 501.203 and 501.204, F.S.; changing

 2         obsolete dates; reenacting and amending s.

 3         501.207, F.S., relating to remedies of the

 4         enforcing authority under the Florida Deceptive

 5         and Unfair Trade Practices Act; providing that

 6         the court may order actions brought under that

 7         act on behalf of an enterprise; amending s.

 8         817.568, F.S.; redefining the term "personal

 9         identification information" and defining the

10         term "counterfeit or fictitious personal

11         identification information"; revising criminal

12         penalties relating to the offense of

13         fraudulently using, or possessing with intent

14         to fraudulently use, personal identification

15         information; providing minimum mandatory terms

16         of imprisonment; creating the offenses of

17         willfully and fraudulently using, or possessing

18         with intent to fraudulently use, personal

19         identification information concerning a

20         deceased individual; providing criminal

21         penalties; providing for minimum mandatory

22         terms of imprisonment; creating the offense of

23         willfully and fraudulently creating or using,

24         or possessing with intent to fraudulently use,

25         counterfeit or fictitious personal

26         identification information; providing criminal

27         penalties; providing for reclassification of

28         offenses under certain circumstances; providing

29         for reduction or suspension of sentences under

30         certain circumstances; providing for

31         severability; providing an effective date.

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

 2  

 3         Section 1.  Section 501.165, Florida Statutes, is

 4  created to read:

 5         501.165  Obtaining personal information for commercial

 6  solicitation.--Any person who intentionally uses deceptive

 7  practices or means to obtain another person's address,

 8  telephone number, or social security number and uses it to

 9  engage in commercial solicitation, or provides it to another

10  person for purposes of commercial solicitation, commits an

11  unfair or deceptive act or practice or unfair method of

12  competition in violation of part II of this chapter, and is

13  subject to the penalties and remedies provided for such

14  violation, in addition to remedies otherwise available for

15  such conduct.

16         Section 2.  Section 501.167, Florida Statutes, is

17  created to read:

18         501.167  Computerized information; breach of security;

19  procedure upon discovery.--

20         (1)  Any person or business that conducts business in

21  this state and that maintains computerized data that includes

22  personal information shall disclose any breach of the security

23  of the system following discovery or notification of the

24  breach of the security of the data to any resident of the

25  state whose unencrypted personal information was, or is

26  reasonably believed to have been, acquired by an unauthorized

27  person. For purposes of this section, a resident of this state

28  may be determined to be an individual whose principal mailing

29  address as reflected in the records of the person or business

30  is in Florida. The disclosure shall be made in the most

31  expedient time possible and without unreasonable delay,

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 1  subject to the legitimate needs of law enforcement agencies,

 2  as provided in subsection (3) and the completion of an

 3  investigation by the person or business to determine the

 4  nature and scope of the incident, to identify the individuals

 5  affected, or to restore the reasonable integrity of the data

 6  system.

 7         (2)  Any person or business that maintains computerized

 8  data on behalf of another business or person which includes

 9  personal information that the person or business does not own

10  shall notify the business or person of the information of any

11  breach of the security of the data immediately following

12  discovery, if the personal information was, or is reasonably

13  believed to have been, acquired by an unauthorized person.

14         (3)  The notification required by this section shall be

15  delayed if a law enforcement agency determines that the

16  notification will impede a criminal investigation. If

17  notification is required by this section, it shall be made

18  after the law enforcement agency determines that it will not

19  compromise the investigation.

20         (4)  For purposes of this section, the term "breach of

21  the security of the system" means unauthorized acquisition of

22  computerized data which materially compromises the security,

23  confidentiality, or integrity of personal information

24  maintained by the person or business and causes or is

25  reasonably believed to cause loss or injury to the state

26  resident. Good faith acquisition of personal information by an

27  employee or agent of the person or business for the purposes

28  of the person or business is not a breach of the security of

29  the system, provided that the personal information is not used

30  for a purpose unrelated to the business or subject to further

31  unauthorized disclosure.

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 1         (5)(a)  For purposes of this section, the term

 2  "personal information" means an individual's first name or

 3  first initial and last name in combination with any one or

 4  more of the following data elements, when the data elements

 5  are not encrypted:

 6         1.  Social security number.

 7         2.  Driver's license number or Florida identification

 8  card number.

 9         3.  Account number, credit card number, or debit card

10  number, in combination with any required security code, access

11  code, or password that would permit access to an individual's

12  financial account.

13         (b)  For purposes of this section, the term "personal

14  information" does not include publicly available information

15  that is lawfully made available to the general public from

16  federal, state, or local government records or widely

17  distributed media.

18         (6)  For purposes of this section, notice may be

19  provided by one of the following methods:

20         (a)  Written notice.

21         (b)  Electronic notice, if the notice provided is

22  consistent with the provisions regarding electronic records

23  and signatures set forth in 15 U.S.C. s. 7001.

24         (c)  Substitute notice, if the person or business

25  demonstrates that the cost of providing notice would exceed

26  $250,000, or that the affected class of subject persons to be

27  notified exceeds 500,000, or the person or business does not

28  have sufficient contact information. Substitute notice shall

29  consist of all of the following:

30         1.  E-mail notice when the person or business has an

31  e-mail address for the subject persons;

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 1         2.  Conspicuous posting of the notice on the Internet

 2  website page of the person or business, if the person or

 3  business maintains one; and

 4         3.  Notification to major statewide media.

 5         (7)  For purposes of this section, the term

 6  "unauthorized person" means any person that is not the person

 7  to whom the personal information belongs and that does not

 8  have permission from or a password issued by the person or

 9  business that stores the computerized data to acquire it.

10         (8)  Notwithstanding subsection (6), a person or

11  business that maintains its own notification procedures as

12  part of an information security policy for the treatment of

13  personal information and is otherwise consistent with the

14  timing requirements of this part shall be deemed to be in

15  compliance with the notification requirements of this section

16  if the person or business notifies subject persons in

17  accordance with its policies in the event of a breach of

18  security of the system.

19         (9)  Notwithstanding subsection (6), notification is

20  not required if, after an appropriate investigation and after

21  consultation with relevant federal or state agencies

22  responsible for law enforcement, the person or business

23  reasonably determines that the breach has not resulted, and

24  will not result, in harm to the individuals whose personal

25  information has been acquired and accessed. Such a

26  determination must be documented in writing, and the

27  documentation maintained for 5 years.

28         (10)  Not less than 2 business days prior to making the

29  notification required by subsection (1), the person or

30  business making the notification shall notify all consumer

31  reporting agencies that compile and maintain files on

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 1  consumers on a nationwide basis of the pending notification

 2  and shall provide a copy of the notification. Any consumer

 3  reporting agency receiving a notification under this

 4  subsection shall transmit the information to any person or

 5  entity that reports information to or receives consumer report

 6  information from such consumer reporting agency in a timely

 7  manner, separate from any regular communication of information

 8  to such person or entity.

 9         (11)  A violation of this section is a deceptive and

10  unfair trade practice and constitutes a violation of the

11  Florida Deceptive and Unfair Trade Practices Act.

12         Section 3.  Section 501.2075, Florida Statutes, is

13  amended to read:

14         501.2075  Civil penalty.--Except as provided in s.

15  501.2076 or s. 501.2077, any person, firm, corporation,

16  association, or entity, or any agent or employee of the

17  foregoing, who is willfully using, or has willfully used, a

18  method, act, or practice declared unlawful under s. 501.204,

19  or who is willfully violating any of the rules of the

20  department adopted under this part, is liable for a civil

21  penalty of not more than $10,000 for each such violation.

22  Willful violations occur when the person knew or should have

23  known that his or her conduct was unfair or deceptive or

24  prohibited by rule.  This civil penalty may be recovered in

25  any action brought under this part by the enforcing authority;

26  or the enforcing authority may terminate any investigation or

27  action upon agreement by the person, firm, corporation,

28  association, or entity, or the agent or employee of the

29  foregoing, to pay a stipulated civil penalty.  The department

30  or the court may waive any such civil penalty if the person,

31  firm, corporation, association, or entity, or the agent or

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 1  employee of the foregoing, has previously made full

 2  restitution or reimbursement or has paid actual damages to the

 3  consumers or governmental entities who have been injured by

 4  the unlawful act or practice or rule violation.  If civil

 5  penalties are assessed in any litigation, the enforcing

 6  authority is entitled to reasonable attorney's fees and costs.

 7  A civil penalty so collected shall accrue to the state and

 8  shall be deposited as received into the General Revenue Fund

 9  unallocated.

10         Section 4.  Section 501.2076, Florida Statutes, is

11  created to read:

12         501.2076  Misrepresentations; law enforcement,

13  firefighters, or public utilities.--Any person who engages in

14  a deceptive and unfair trade practice with the intent to

15  deceive another person into believing that he or she is

16  affiliated with a law enforcement agency, firefighting agency,

17  or public utility is subject to a civil penalty not to exceed

18  $15,000 for each violation.

19         Section 5.  Present subsections (3) and (4) of section

20  501.2077, Florida Statutes, are redesignated as subsections

21  (4) and (5), respectively, and a new subsection (3) is added

22  to that section, to read:

23         501.2077  Violations involving senior citizen or

24  handicapped person; civil penalties; presumption.--

25         (3)  It is presumed to be substantively and

26  procedurally unconscionable and an unfair or deceptive trade

27  act in violation of this part for any person to cause a

28  handicapped person, or a senior citizen who is at least 70

29  years of age and whose ability to perform the normal

30  activities of daily living is impaired, or the designee or

31  

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 1  legal representative of the handicapped person or senior

 2  citizen, to:

 3         (a)  Waive or limit any benefit or right conferred by

 4  any statute intended to provide protection to such persons; or

 5         (b)  Waive the person's right of access to a jury

 6  trial,

 7  

 8  unless the waiver is acknowledged in writing to be knowing and

 9  voluntary by an attorney representing the senior citizen or

10  handicapped person.

11         Section 6.  A person who violates or fails to comply

12  with any provision of section 817.568, Florida Statutes,

13  commits an unfair or deceptive act or practice or unfair

14  method of competition in violation of part II of chapter 501,

15  Florida Statutes, and is subject to the penalties and remedies

16  provided for such violation, in addition to remedies otherwise

17  available for such conduct.

18         Section 7.  Subsection (3) of section 501.203, Florida

19  Statutes, is amended to read:

20         501.203  Definitions.--As used in this chapter, unless

21  the context otherwise requires, the term:

22         (3)  "Violation of this part" means any violation of

23  this act or the rules adopted under this act and may be based

24  upon any of the following as of July 1, 2005 2001:

25         (a)  Any rules promulgated pursuant to the Federal

26  Trade Commission Act, 15 U.S.C. ss. 41 et seq.;

27         (b)  The standards of unfairness and deception set

28  forth and interpreted by the Federal Trade Commission or the

29  federal courts;

30  

31  

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 1         (c)  Any law, statute, rule, regulation, or ordinance

 2  which proscribes unfair methods of competition, or unfair,

 3  deceptive, or unconscionable acts or practices.

 4         Section 8.  Subsection (2) of section 501.204, Florida

 5  Statutes, is amended to read:

 6         501.204  Unlawful acts and practices.--

 7         (2)  It is the intent of the Legislature that, in

 8  construing subsection (1), due consideration and great weight

 9  shall be given to the interpretations of the Federal Trade

10  Commission and the federal courts relating to s. 5(a)(1) of

11  the Federal Trade Commission Act, 15 U.S.C. s. 45(a)(1) as of

12  July 1, 2005 2001.

13         Section 9.  Subsection (1) of section 501.207, Florida

14  Statutes, is reenacted, and subsection (3) of that section is

15  amended to read:

16         501.207  Remedies of enforcing authority.--

17         (1)  The enforcing authority may bring:

18         (a)  An action to obtain a declaratory judgment that an

19  act or practice violates this part.

20         (b)  An action to enjoin any person who has violated,

21  is violating, or is otherwise likely to violate, this part.

22         (c)  An action on behalf of one or more consumers or

23  governmental entities for the actual damages caused by an act

24  or practice in violation of this part. However, damages are

25  not recoverable under this section against a retailer who has

26  in good faith engaged in the dissemination of claims of a

27  manufacturer or wholesaler without actual knowledge that it

28  violated this part.

29         (3)  Upon motion of the enforcing authority or any

30  interested party in any action brought under subsection (1),

31  the court may make appropriate orders, including, but not

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 1  limited to, appointment of a general or special magistrate or

 2  receiver or sequestration or freezing of assets, to reimburse

 3  consumers or governmental entities found to have been damaged;

 4  to carry out a transaction in accordance with the reasonable

 5  expectations of consumers or governmental entities; to strike

 6  or limit the application of clauses of contracts to avoid an

 7  unconscionable result; to bring actions in the name of and on

 8  behalf of the defendant enterprise; to order any defendant to

 9  divest herself or himself of any interest in any enterprise,

10  including real estate; to impose reasonable restrictions upon

11  the future activities of any defendant to impede her or him

12  from engaging in or establishing the same type of endeavor; to

13  order the dissolution or reorganization of any enterprise; or

14  to grant legal, equitable, or other appropriate relief. The

15  court may assess the expenses of a general or special

16  magistrate or receiver against a person who has violated, is

17  violating, or is otherwise likely to violate this part. Any

18  injunctive order, whether temporary or permanent, issued by

19  the court shall be effective throughout the state unless

20  otherwise provided in the order.

21         Section 10.  Section 817.568, Florida Statutes, is

22  amended to read:

23         817.568  Criminal use of personal identification

24  information.--

25         (1)  As used in this section, the term:

26         (a)  "Access device" means any card, plate, code,

27  account number, electronic serial number, mobile

28  identification number, personal identification number, or

29  other telecommunications service, equipment, or instrument

30  identifier, or other means of account access that can be used,

31  alone or in conjunction with another access device, to obtain

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 1  money, goods, services, or any other thing of value, or that

 2  can be used to initiate a transfer of funds, other than a

 3  transfer originated solely by paper instrument.

 4         (b)  "Authorization" means empowerment, permission, or

 5  competence to act.

 6         (c)  "Harass" means to engage in conduct directed at a

 7  specific person that is intended to cause substantial

 8  emotional distress to such person and serves no legitimate

 9  purpose. "Harass" does not mean to use personal identification

10  information for accepted commercial purposes. The term does

11  not include constitutionally protected conduct such as

12  organized protests or the use of personal identification

13  information for accepted commercial purposes.

14         (d)  "Individual" means a single human being and does

15  not mean a firm, association of individuals, corporation,

16  partnership, joint venture, sole proprietorship, or any other

17  entity.

18         (e)  "Person" means a "person" as defined in s.

19  1.01(3).

20         (f)  "Personal identification information" means any

21  name or number that may be used, alone or in conjunction with

22  any other information, to identify a specific individual,

23  including any:

24         1.  Name, postal or electronic mail address, telephone

25  number, social security number, date of birth, mother's maiden

26  name, official state-issued or United States-issued driver's

27  license or identification number, alien registration number,

28  government passport number, employer or taxpayer

29  identification number, Medicaid or food stamp account number,

30  or bank account number, or credit or debit card number, or

31  personal identification number or code assigned to the holder

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 1  of a debit card by the issuer to permit authorized electronic

 2  use of such card;

 3         2.  Unique biometric data, such as fingerprint, voice

 4  print, retina or iris image, or other unique physical

 5  representation;

 6         3.  Unique electronic identification number, address,

 7  or routing code; or

 8         4.  Medical records;

 9         5.4.  Telecommunication identifying information or

10  access device; or.

11         6.  Other number or information that can be used to

12  access a person's financial resources.

13         (g)  "Counterfeit or fictitious personal identification

14  information" means any counterfeit, fictitious, or fabricated

15  information in the similitude of the data outlined in

16  paragraph (f) that, although not truthful or accurate, would

17  in context lead a reasonably prudent person to credit its

18  truthfulness and accuracy.

19         (2)(a)  Any person who willfully and without

20  authorization fraudulently uses, or possesses with intent to

21  fraudulently use, personal identification information

22  concerning an individual without first obtaining that

23  individual's consent, commits the offense of fraudulent use of

24  personal identification information, which is a felony of the

25  third degree, punishable as provided in s. 775.082, s.

26  775.083, or s. 775.084.

27         (b)  Any person who willfully and without authorization

28  fraudulently uses personal identification information

29  concerning an individual without first obtaining that

30  individual's consent commits a felony of the second degree,

31  punishable as provided in s. 775.082, s. 775.083, or s.

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 1  775.084, if the pecuniary benefit, the value of the services

 2  received, the payment sought to be avoided, or the amount of

 3  the injury or fraud perpetrated is $5,000 or more or if the

 4  person fraudulently uses the personal identification

 5  information of 10 or more individuals, but fewer than 20

 6  individuals, without their consent. Notwithstanding any other

 7  provision of law, the court shall sentence any person

 8  convicted of committing the offense described in this

 9  paragraph to a mandatory minimum sentence of 3 years'

10  imprisonment.

11         (c)  Any person who willfully and without authorization

12  fraudulently uses personal identification information

13  concerning an individual without first obtaining that

14  individual's consent commits a felony of the first degree,

15  punishable as provided in s. 775.082, s. 775.083, or s.

16  775.084, if the pecuniary benefit, the value of the services

17  received, the payment sought to be avoided, or the amount of

18  the injury or fraud perpetrated is $50,000 or more or if the

19  person fraudulently uses the personal identification

20  information of 20 or more individuals, but fewer than 30

21  individuals, without their consent. Notwithstanding any other

22  provision of law, the court shall sentence any person

23  convicted of committing the offense described in this

24  paragraph:

25         1.  to a mandatory minimum sentence of 5 years'

26  imprisonment. If the pecuniary benefit, the value of the

27  services received, the payment sought to be avoided, or the

28  amount of the injury or fraud perpetrated is $100,000 or more,

29  or if the person fraudulently uses the personal identification

30  information of 30 or more individuals without their consent,

31  notwithstanding any other law, the court shall sentence any

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 1  person convicted of committing the offense described in this

 2  paragraph

 3         2.  to a mandatory minimum sentence of 10 years'

 4  imprisonment, if the pecuniary benefit, the value of the

 5  services received, the payment sought to be avoided, or the

 6  amount of the injury or fraud perpetrated is $100,000 or more

 7  or if the person fraudulently uses the personal identification

 8  information of 30 or more individuals without their consent.

 9         (3)  Neither paragraph (2)(b) nor paragraph (2)(c)

10  prevents a court from imposing a greater sentence of

11  incarceration as authorized by law. If the minimum mandatory

12  terms of imprisonment imposed under paragraph (2)(b) or

13  paragraph (2)(c) exceed the maximum sentences authorized under

14  s. 775.082, s. 775.084, or the Criminal Punishment Code under

15  chapter 921, the mandatory minimum sentence must be imposed.

16  If the mandatory minimum terms of imprisonment under paragraph

17  (2)(b) or paragraph (2)(c) are less than the sentence that

18  could be imposed under s. 775.082, s. 775.084, or the Criminal

19  Punishment Code under chapter 921, the sentence imposed by the

20  court must include the mandatory minimum term of imprisonment

21  as required by paragraph (2)(b) or paragraph (2)(c).

22         (4)  A Any person who willfully and without

23  authorization possesses, uses, or attempts to use personal

24  identification information concerning an individual without

25  first obtaining that individual's consent, and who does so for

26  the purpose of harassing that individual, commits the offense

27  of harassment by use of personal identification information,

28  which is a misdemeanor of the first degree, punishable as

29  provided in s. 775.082 or s. 775.083.

30         (5)  If an offense prohibited under this section was

31  facilitated or furthered by the use of a public record, as

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 1  defined in s. 119.011, the offense is reclassified to the next

 2  higher degree as follows:

 3         (a)  A misdemeanor of the first degree is reclassified

 4  as a felony of the third degree.

 5         (b)  A felony of the third degree is reclassified as a

 6  felony of the second degree.

 7         (c)  A felony of the second degree is reclassified as a

 8  felony of the first degree.

 9  

10  For purposes of sentencing under chapter 921 and incentive

11  gain-time eligibility under chapter 944, a felony offense that

12  is reclassified under this subsection is ranked one level

13  above the ranking under s. 921.0022 of the felony offense

14  committed, and a misdemeanor offense that is reclassified

15  under this subsection is ranked in level 2 of the offense

16  severity ranking chart in s. 921.0022.

17         (6)  A Any person who willfully and without

18  authorization fraudulently uses personal identification

19  information concerning an individual who is less than 18 years

20  of age without first obtaining the consent of that individual

21  or of his or her legal guardian commits a felony of the second

22  degree, punishable as provided in s. 775.082, s. 775.083, or

23  s. 775.084.

24         (7)  A Any person who is in the relationship of parent

25  or legal guardian, or who otherwise exercises custodial

26  authority over an individual who is less than 18 years of age,

27  who willfully and fraudulently uses personal identification

28  information of that individual commits a felony of the second

29  degree, punishable as provided in s. 775.082, s. 775.083, or

30  s. 775.084.

31  

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 1         (8)(a)  A person who willfully and fraudulently uses,

 2  or possesses with intent to fraudulently use, personal

 3  identification information concerning a deceased individual

 4  commits the offense of fraudulent use or possession with

 5  intent to use personal identification information of a

 6  deceased individual, a felony of the third degree, punishable

 7  as provided in s. 775.082, s. 775.083, or s. 775.084.

 8         (b)  A person who willfully and fraudulently uses

 9  personal identification information concerning a deceased

10  individual commits a felony of the second degree, punishable

11  as provided in s. 775.082, s. 775.083, or s. 775.084, if the

12  pecuniary benefit, the value of the services received, the

13  payment sought to be avoided, or the amount of injury or fraud

14  perpetrated is $5,000 or more, or if the person fraudulently

15  uses the personal identification information of 10 or more but

16  fewer than 20 deceased individuals. Notwithstanding any other

17  law, the court shall sentence any person convicted of

18  committing the offense described in this paragraph to a

19  mandatory minimum sentence of 3 years' imprisonment.

20         (c)  A person who willfully and fraudulently uses

21  personal identification information concerning a deceased

22  individual commits the offense of aggravated fraudulent use of

23  the personal identification information of multiple deceased

24  individuals, a felony of the first degree, punishable as

25  provided in s. 775.082, s. 775.083, or s. 775.084, if the

26  pecuniary benefit, the value of the services received, the

27  payment sought to be avoided, or the amount of injury or fraud

28  perpetrated is $50,000 or more, or if the person fraudulently

29  uses the personal identification information of 20 or more but

30  fewer than 30 deceased individuals. Notwithstanding any other

31  law, the court shall sentence a person convicted of the

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 1  offense described in this paragraph to a minimum mandatory

 2  sentence of 5 years' imprisonment. If the pecuniary benefit,

 3  the value of the services received, the payment sought to be

 4  avoided, or the amount of the injury or fraud perpetrated is

 5  $100,000 or more, or if the person fraudulently uses the

 6  personal identification information of 30 or more deceased

 7  individuals, notwithstanding any other provision of law, the

 8  court shall sentence a person convicted of an offense

 9  described in this paragraph to a mandatory minimum sentence of

10  10 years' imprisonment.

11         (9)  A person who willfully and fraudulently creates or

12  uses, or possesses with intent to fraudulently use,

13  counterfeit or fictitious personal identification information

14  concerning a fictitious individual, or concerning a real

15  individual without first obtaining that real individual's

16  consent, with intent to use the counterfeit or fictitious

17  personal identification information for the purpose of

18  committing or facilitating the commission of a fraud on

19  another person, commits the offense of fraudulent creation or

20  use, or possession with intent to fraudulently use,

21  counterfeit or fictitious personal identification information,

22  a felony of the third degree, punishable as provided in s.

23  775.082, s. 775.083, or s. 775.084.

24         (10)  A person who commits an offense described in this

25  section and for the purpose of obtaining or using personal

26  identification information misrepresents himself or herself to

27  be a law enforcement officer; an employee or representative of

28  a bank, credit card company, credit counseling company, or

29  credit reporting agency; or a person who wrongfully represents

30  that he or she is seeking to assist the victim with a problem

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 1  concerning the victim's credit history shall have the offense

 2  reclassified as follows:

 3         (a)  In the case of a misdemeanor, the offense is

 4  reclassified as a felony of the third degree.

 5         (b)  In the case of a felony of the third degree, the

 6  offense is reclassified as a felony of the second degree.

 7         (c)  In the case of a felony of the second degree, the

 8  offense is reclassified as a felony of the first degree.

 9         (d)  In the case of a felony of the first degree or a

10  felony of the first degree punishable by a term of

11  imprisonment not exceeding life, the offense is reclassified

12  as a life felony.

13  

14  For purposes of sentencing under chapter 921, a felony offense

15  that is reclassified under this subsection is ranked one level

16  above the ranking under s. 921.0022 or s. 921.0023 of the

17  felony offense committed, and a misdemeanor offense that is

18  reclassified under this subsection is ranked in level 2 of the

19  offense severity ranking chart.

20         (11)  The prosecutor may move the sentencing court to

21  reduce or suspend the sentence of a person who is convicted of

22  a violation of this section and who provides substantial

23  assistance in the identification, arrest, or conviction of any

24  of that person's accomplices, accessories, coconspirators, or

25  principals or of any other person engaged in fraudulent

26  possession or use of personal identification information. The

27  arresting agency shall be given an opportunity to be heard in

28  aggravation or mitigation in reference to any such motion.

29  Upon good cause shown, the motion may be filed and heard in

30  camera. The judge hearing the motion may reduce or suspend the

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 1  sentence if the judge finds that the defendant rendered such

 2  substantial assistance.

 3         (12)(8)  This section does not prohibit any lawfully

 4  authorized investigative, protective, or intelligence activity

 5  of a law enforcement agency of this state or any of its

 6  political subdivisions, of any other state or its political

 7  subdivisions, or of the Federal Government or its political

 8  subdivisions.

 9         (13)(9)(a)  In sentencing a defendant convicted of an

10  offense under this section, the court may order that the

11  defendant make restitution under pursuant to s. 775.089 to any

12  victim of the offense. In addition to the victim's

13  out-of-pocket costs, such restitution may include payment of

14  any other costs, including attorney's fees incurred by the

15  victim in clearing the victim's credit history or credit

16  rating, or any costs incurred in connection with any civil or

17  administrative proceeding to satisfy any debt, lien, or other

18  obligation of the victim arising as the result of the actions

19  of the defendant.

20         (b)  The sentencing court may issue such orders as are

21  necessary to correct any public record that contains false

22  information given in violation of this section.

23         (14)(10)  Prosecutions for violations of this section

24  may be brought on behalf of the state by any state attorney or

25  by the statewide prosecutor.

26         (15)(11)  The Legislature finds that, in the absence of

27  evidence to the contrary, the location where a victim gives or

28  fails to give consent to the use of personal identification

29  information is the county where the victim generally resides.

30         (16)(12)  Notwithstanding any other provision of law,

31  venue for the prosecution and trial of violations of this

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 1  section may be commenced and maintained in any county in which

 2  an element of the offense occurred, including the county where

 3  the victim generally resides.

 4         (17)(13)  A prosecution of an offense prohibited under

 5  subsection (2), subsection (6), or subsection (7) must be

 6  commenced within 3 years after the offense occurred. However,

 7  a prosecution may be commenced within 1 year after discovery

 8  of the offense by an aggrieved party, or by a person who has a

 9  legal duty to represent the aggrieved party and who is not a

10  party to the offense, if such prosecution is commenced within

11  5 years after the violation occurred.

12         Section 11.  If any provision of this act or its

13  application to any person or circumstance is held invalid, the

14  invalidity does not affect other provisions or applications of

15  the act which can be given effect without the invalid

16  provision or application, and to this end the provisions of

17  this act are severable.

18         Section 12.  This act shall take effect July 1, 2005.

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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 284

 3                                 

 4  The committee substitute makes the following changes to the
    underlying bill:
 5  
    --   Removes proposed section that would have made it a crime
 6       to sell or otherwise transfer personal identification
         information without that person's consent;
 7  
    --   Creates a new section of statute requiring persons
 8       maintaining computerized data that includes personal
         information to disclose breaches of system security under
 9       certain circumstances;

10  --   Provides that it is a violation of the Florida Deceptive
         and Unfair Trade Practices Act to cause a senior citizen
11       over the age of 70 or a handicapped person to waive that
         person's right to a jury trial or to waive or limit that
12       person's right to any benefit or protection conferred on
         that person; and
13  
    --   Makes numerous revisions to the identity theft statute,
14       including, among other changes, creating a criminal
         penalty for fraudulent use of deceased person's personal
15       identification information.

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