Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. CS for SB 978
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CHAMBER ACTION
Senate House
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10 ______________________________________________________________
11 The Committee on Commerce and Consumer Services (Aronberg)
12 recommended the following amendment:
13
14 Senate Amendment (with title amendment)
15 Delete everything after the enacting clause
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17 and insert:
18 Section 1. Section 817.568, Florida Statutes, is
19 amended to read:
20 817.568 Criminal use of personal identification
21 information.--
22 (1) As used in this section, the term:
23 (a) "Access device" means any card, plate, code,
24 account number, electronic serial number, mobile
25 identification number, personal identification number, or
26 other telecommunications service, equipment, or instrument
27 identifier, or other means of account access that can be used,
28 alone or in conjunction with another access device, to obtain
29 money, goods, services, or any other thing of value, or that
30 can be used to initiate a transfer of funds, other than a
31 transfer originated solely by paper instrument.
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1 (b) "Authorization" means empowerment, permission, or
2 competence to act.
3 (c) "Harass" means to engage in conduct directed at a
4 specific person that is intended to cause substantial
5 emotional distress to such person and serves no legitimate
6 purpose. "Harass" does not mean to use personal identification
7 information for accepted commercial purposes. The term does
8 not include constitutionally protected conduct such as
9 organized protests or the use of personal identification
10 information for accepted commercial purposes.
11 (d) "Individual" means a single human being and does
12 not mean a firm, association of individuals, corporation,
13 partnership, joint venture, sole proprietorship, or any other
14 entity.
15 (e) "Person" means a "person" as defined in s.
16 1.01(3).
17 (f) "Personal identification information" means any
18 name or number that may be used, alone or in conjunction with
19 any other information, to identify a specific individual,
20 including any:
21 1. Name, postal or electronic mail address, telephone
22 number, social security number, date of birth, mother's maiden
23 name, official state-issued or United States-issued driver's
24 license or identification number, alien registration number,
25 government passport number, employer or taxpayer
26 identification number, Medicaid or food stamp account number,
27 or bank account number, or credit or debit card number, or
28 personal identification number or code assigned to the holder
29 of a debit card by the issuer to permit authorized electronic
30 use of such card;
31 2. Unique biometric data, such as fingerprint, voice
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1 print, retina or iris image, or other unique physical
2 representation;
3 3. Unique electronic identification number, address,
4 or routing code; or
5 4. Medical records;
6 5.4. Telecommunication identifying information or
7 access device; or.
8 6. Other number or information that can be used to
9 access a person's financial resources.
10 (g) "Counterfeit or fictitious personal identification
11 information" means any counterfeit, fictitious, or fabricated
12 information in the similitude of the data outlined in
13 paragraph (f) which, although not truthful or accurate, would
14 in context lead a reasonably prudent person to credit its
15 truthfulness and accuracy.
16 (2)(a) Any person who willfully and without
17 authorization fraudulently uses, or possesses with intent to
18 fraudulently use, personal identification information
19 concerning an individual without first obtaining that
20 individual's consent, commits the offense of fraudulent use of
21 personal identification information, which is a felony of the
22 third degree, punishable as provided in s. 775.082, s.
23 775.083, or s. 775.084.
24 (b) Any person who willfully and without authorization
25 fraudulently uses personal identification information
26 concerning an individual without first obtaining that
27 individual's consent commits a felony of the second degree,
28 punishable as provided in s. 775.082, s. 775.083, or s.
29 775.084, if the pecuniary benefit, the value of the services
30 received, the payment sought to be avoided, or the amount of
31 the injury or fraud perpetrated is $5,000 or more or if the
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1 person fraudulently uses the personal identification
2 information of 10 or more individuals, but fewer than 20
3 individuals, without their consent. Notwithstanding any other
4 provision of law, the court shall sentence any person
5 convicted of committing the offense described in this
6 paragraph to a mandatory minimum sentence of 3 years'
7 imprisonment.
8 (c) Any person who willfully and without authorization
9 fraudulently uses personal identification information
10 concerning an individual without first obtaining that
11 individual's consent commits a felony of the first degree,
12 punishable as provided in s. 775.082, s. 775.083, or s.
13 775.084, if the pecuniary benefit, the value of the services
14 received, the payment sought to be avoided, or the amount of
15 the injury or fraud perpetrated is $50,000 or more or if the
16 person fraudulently uses the personal identification
17 information of 20 or more individuals, but fewer than 30
18 individuals, without their consent. Notwithstanding any other
19 provision of law, the court shall sentence any person
20 convicted of committing the offense described in this
21 paragraph:
22 1. to a mandatory minimum sentence of 5 years'
23 imprisonment. If the pecuniary benefit, the value of the
24 services received, the payment sought to be avoided, or the
25 amount of the injury or fraud perpetrated is $100,000 or more,
26 or if the person fraudulently uses the personal identification
27 information of 30 or more individuals without their consent,
28 notwithstanding any other provision of law, the court shall
29 sentence any person convicted of committing the offense
30 described in this paragraph
31 2. to a mandatory minimum sentence of 10 years'
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1 imprisonment, if the pecuniary benefit, the value of the
2 services received, the payment sought to be avoided, or the
3 amount of the injury or fraud perpetrated is $100,000 or more
4 or if the person fraudulently uses the personal identification
5 information of 30 or more individuals without their consent.
6 (3) Neither paragraph (2)(b) nor paragraph (2)(c)
7 prevents a court from imposing a greater sentence of
8 incarceration as authorized by law. If the minimum mandatory
9 terms of imprisonment imposed under paragraph (2)(b) or
10 paragraph (2)(c) exceed the maximum sentences authorized under
11 s. 775.082, s. 775.084, or the Criminal Punishment Code under
12 chapter 921, the mandatory minimum sentence must be imposed.
13 If the mandatory minimum terms of imprisonment under paragraph
14 (2)(b) or paragraph (2)(c) are less than the sentence that
15 could be imposed under s. 775.082, s. 775.084, or the Criminal
16 Punishment Code under chapter 921, the sentence imposed by the
17 court must include the mandatory minimum term of imprisonment
18 as required by paragraph (2)(b) or paragraph (2)(c).
19 (4) Any person who willfully and without authorization
20 possesses, uses, or attempts to use personal identification
21 information concerning an individual without first obtaining
22 that individual's consent, and who does so for the purpose of
23 harassing that individual, commits the offense of harassment
24 by use of personal identification information, which is a
25 misdemeanor of the first degree, punishable as provided in s.
26 775.082 or s. 775.083.
27 (5) If an offense prohibited under this section was
28 facilitated or furthered by the use of a public record, as
29 defined in s. 119.011, the offense is reclassified to the next
30 higher degree as follows:
31 (a) A misdemeanor of the first degree is reclassified
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1 as a felony of the third degree.
2 (b) A felony of the third degree is reclassified as a
3 felony of the second degree.
4 (c) A felony of the second degree is reclassified as a
5 felony of the first degree.
6
7 For purposes of sentencing under chapter 921 and incentive
8 gain-time eligibility under chapter 944, a felony offense that
9 is reclassified under this subsection is ranked one level
10 above the ranking under s. 921.0022 of the felony offense
11 committed, and a misdemeanor offense that is reclassified
12 under this subsection is ranked in level 2 of the offense
13 severity ranking chart in s. 921.0022.
14 (6) Any person who willfully and without authorization
15 fraudulently uses personal identification information
16 concerning an individual who is less than 18 years of age
17 without first obtaining the consent of that individual or of
18 his or her legal guardian commits a felony of the second
19 degree, punishable as provided in s. 775.082, s. 775.083, or
20 s. 775.084.
21 (7) Any person who is in the relationship of parent or
22 legal guardian, or who otherwise exercises custodial authority
23 over an individual who is less than 18 years of age, who
24 willfully and fraudulently uses personal identification
25 information of that individual commits a felony of the second
26 degree, punishable as provided in s. 775.082, s. 775.083, or
27 s. 775.084.
28 (8)(a) Any person who willfully and fraudulently uses,
29 or possesses with intent to fraudulently use, personal
30 identification information concerning a deceased individual
31 commits the offense of fraudulent use or possession with
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1 intent to use personal identification information of a
2 deceased individual, a felony of the third degree, punishable
3 as provided in s. 775.082, s. 775.083, or s. 775.084.
4 (b) Any person who willfully and fraudulently uses
5 personal identification information concerning a deceased
6 individual commits a felony of the second degree, punishable
7 as provided in s. 775.082, s. 775.083, or s. 775.084, if the
8 pecuniary benefit, the value of the services received, the
9 payment sought to be avoided, or the amount of injury or fraud
10 perpetrated is $5,000 or more, or if the person fraudulently
11 uses the personal identification information of 10 or more but
12 fewer than 20 deceased individuals. Notwithstanding any other
13 provision of law, the court shall sentence any person
14 convicted of committing the offense described in this
15 paragraph to a mandatory minimum sentence of 3 years'
16 imprisonment.
17 (c) Any person who willfully and fraudulently uses
18 personal identification information concerning a deceased
19 individual commits the offense of aggravated fraudulent use of
20 the personal identification information of multiple deceased
21 individuals, a felony of the first degree, punishable as
22 provided in s. 775.082, s. 775.083, or s. 775.084, if the
23 pecuniary benefit, the value of the services received, the
24 payment sought to be avoided, or the amount of injury or fraud
25 perpetrated is $50,000 or more, or if the person fraudulently
26 uses the personal identification information of 20 or more but
27 fewer than 30 deceased individuals. Notwithstanding any other
28 provision of law, the court shall sentence any person
29 convicted of the offense described in this paragraph to a
30 minimum mandatory sentence of 5 years' imprisonment. If the
31 pecuniary benefit, the value of the services received, the
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1 payment sought to be avoided, or the amount of the injury or
2 fraud perpetrated is $100,000 or more, or if the person
3 fraudulently uses the personal identification information of
4 30 or more deceased individuals, notwithstanding any other
5 provision of law, the court shall sentence any person
6 convicted of an offense described in this paragraph to a
7 mandatory minimum sentence of 10 years' imprisonment.
8 (9) Any person who willfully and fraudulently creates
9 or uses, or possesses with intent to fraudulently use,
10 counterfeit or fictitious personal identification information
11 concerning a fictitious individual, or concerning a real
12 individual without first obtaining that real individual's
13 consent, with intent to use such counterfeit or fictitious
14 personal identification information for the purpose of
15 committing or facilitating the commission of a fraud on
16 another person, commits the offense of fraudulent creation or
17 use, or possession with intent to fraudulently use,
18 counterfeit or fictitious personal identification information,
19 a felony of the third degree, punishable as provided in s.
20 775.082, s. 775.083, or s. 775.084.
21 (10) Any person who commits an offense described in
22 this section and for the purpose of obtaining or using
23 personal identification information misrepresents himself or
24 herself to be a law enforcement officer; an employee or
25 representative of a bank, credit card company, credit
26 counseling company, or credit reporting agency; or any person
27 who wrongfully represents that he or she is seeking to assist
28 the victim with a problem with the victim's credit history
29 shall have the offense reclassified as follows:
30 (a) In the case of a misdemeanor, the offense is
31 reclassified as a felony of the third degree.
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1 (b) In the case of a felony of the third degree, the
2 offense is reclassified as a felony of the second degree.
3 (c) In the case of a felony of the second degree, the
4 offense is reclassified as a felony of the first degree.
5 (d) In the case of a felony of the first degree or a
6 felony of the first degree punishable by a term of
7 imprisonment not exceeding life, the offense is reclassified
8 as a life felony.
9
10 For purposes of sentencing under chapter 921, a felony offense
11 that is reclassified under this subsection is ranked one level
12 above the ranking under s. 921.0022 or s. 921.0023 of the
13 felony offense committed, and a misdemeanor offense that is
14 reclassified under this subsection is ranked in level 2 of the
15 offense severity ranking chart.
16 (11) The prosecutor may move the sentencing court to
17 reduce or suspend the sentence of any person who is convicted
18 of a violation of this section and who provides substantial
19 assistance in the identification, arrest, or conviction of any
20 of that person's accomplices, accessories, coconspirators, or
21 principals or of any other person engaged in fraudulent
22 possession or use of personal identification information. The
23 arresting agency shall be given an opportunity to be heard in
24 aggravation or mitigation in reference to any such motion.
25 Upon good cause shown, the motion may be filed and heard in
26 camera. The judge hearing the motion may reduce or suspend the
27 sentence if the judge finds that the defendant rendered such
28 substantial assistance.
29 (12)(8) This section does not prohibit any lawfully
30 authorized investigative, protective, or intelligence activity
31 of a law enforcement agency of this state or any of its
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1 political subdivisions, of any other state or its political
2 subdivisions, or of the Federal Government or its political
3 subdivisions.
4 (13)(9)(a) In sentencing a defendant convicted of an
5 offense under this section, the court may order that the
6 defendant make restitution under pursuant to s. 775.089 to any
7 victim of the offense. In addition to the victim's
8 out-of-pocket costs, such restitution may include payment of
9 any other costs, including attorney's fees incurred by the
10 victim in clearing the victim's credit history or credit
11 rating, or any costs incurred in connection with any civil or
12 administrative proceeding to satisfy any debt, lien, or other
13 obligation of the victim arising as the result of the actions
14 of the defendant.
15 (b) The sentencing court may issue such orders as are
16 necessary to correct any public record that contains false
17 information given in violation of this section.
18 (14)(10) Prosecutions for violations of this section
19 may be brought on behalf of the state by any state attorney or
20 by the statewide prosecutor.
21 (15)(11) The Legislature finds that, in the absence of
22 evidence to the contrary, the location where a victim gives or
23 fails to give consent to the use of personal identification
24 information is the county where the victim generally resides.
25 (16)(12) Notwithstanding any other provision of law,
26 venue for the prosecution and trial of violations of this
27 section may be commenced and maintained in any county in which
28 an element of the offense occurred, including the county where
29 the victim generally resides.
30 (17)(13) A prosecution of an offense prohibited under
31 subsection (2), subsection (6), or subsection (7) must be
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1 commenced within 3 years after the offense occurred. However,
2 a prosecution may be commenced within 1 year after discovery
3 of the offense by an aggrieved party, or by a person who has a
4 legal duty to represent the aggrieved party and who is not a
5 party to the offense, if such prosecution is commenced within
6 5 years after the violation occurred.
7 Section 2. Section 817.5681, Florida Statutes, is
8 created to read:
9 817.5681 Breach of security concerning confidential
10 personal information in third-party possession; administrative
11 penalties.--
12 (1)(a) Any person who conducts business in this state
13 and maintains computerized data in a system that includes
14 personal information shall provide notice of any breach of the
15 security of the system, following a determination of the
16 breach, to any resident of this state whose unencrypted
17 personal information was, or is reasonably believed to have
18 been, acquired by an unauthorized person. The notification
19 shall be made without unreasonable delay, consistent with the
20 legitimate needs of law enforcement, as provided in subsection
21 (3) and paragraph (10)(a), or subject to any measures
22 necessary to determine the presence, nature, and scope of the
23 breach and restore the reasonable integrity of the system.
24 Notification must be made no later than 45 days following the
25 determination of the breach unless otherwise provided in this
26 section.
27 (b) Any person required to make notification under
28 paragraph (a) who fails to do so within 45 days following the
29 determination of a breach or receipt of notice from law
30 enforcement as provided in subsection (3) is liable for an
31 administrative fine not to exceed $500,000, as follows:
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1 1. In the amount of $1,000 for each day the breach
2 goes undisclosed for up to 30 days and, thereafter, $50,000
3 for each 30-day period or portion thereof for up to 180 days.
4 2. If notification is not made within 180 days, any
5 person required to make notification under paragraph (a) who
6 fails to do so is subject to an administrative fine of up to
7 $500,000.
8 (c) The administrative sanctions for failure to notify
9 provided in this subsection shall not apply in the case of
10 personal information in the custody of any governmental agency
11 or subdivision, unless that governmental agency or subdivision
12 has entered into a contract with a contractor or third-party
13 administrator to provide governmental services. In such case,
14 the contractor or third-party administrator shall be a person
15 to whom the administrative sanctions provided in this
16 subsection would apply, although such contractor or
17 third-party administrator found in violation of the
18 notification requirements provided in this subsection would
19 not have an action for contribution or set-off available
20 against the employing agency or subdivision.
21 (2)(a) Any person who maintains computerized data that
22 includes personal information on behalf of another business
23 entity shall disclose to the business entity for which the
24 information is maintained any breach of the security of the
25 system as soon as practicable, but no later than 10 days
26 following the determination, if the personal information was,
27 or is reasonably believed to have been, acquired by an
28 unauthorized person. The person who maintains the data on
29 behalf of another business entity and the business entity on
30 whose behalf the data is maintained may agree who will provide
31 the notice, if any is required, as provided in paragraph
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1 (1)(a), provided only a single notice for each breach of the
2 security of the system shall be required. If agreement
3 regarding notification cannot be reached, the person who has
4 the direct business relationship with the resident of this
5 state shall be subject to the provisions of paragraph (1)(a).
6 (b) Any person required to disclose to a business
7 entity under paragraph (a) who fails to do so within 10 days
8 after the determination of a breach or receipt of notification
9 from law enforcement as provided in subsection (3) is liable
10 for an administrative fine not to exceed $500,000, as follows:
11 1. In the amount of $1,000 for each day the breach
12 goes undisclosed for up to 30 days and, thereafter, $50,000
13 for each 30-day period or portion thereof for up to 180 days.
14 2. If disclosure is not made within 180 days, any
15 person required to make disclosures under paragraph (a) who
16 fails to do so is subject to an administrative fine of up to
17 $500,000.
18 (c) The administrative sanctions for nondisclosure
19 provided in this subsection shall not apply in the case of
20 personal information in the custody of any governmental agency
21 or subdivision unless that governmental agency or subdivision
22 has entered into a contract with a contractor or third-party
23 administrator to provide governmental services. In such case,
24 the contractor or third-party administrator shall be a person
25 to whom the administrative sanctions provided in this
26 subsection would apply, although such contractor or
27 third-party administrator found in violation of the
28 nondisclosure restrictions in this subsection would not have
29 an action for contribution or set-off available against the
30 employing agency or subdivision.
31 (3) The notification required by this section may be
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1 delayed upon a request by law enforcement if a law enforcement
2 agency determines that the notification will impede a criminal
3 investigation. The notification time period required by this
4 section shall commence after the person receives notice from
5 the law enforcement agency that the notification will not
6 compromise the investigation.
7 (4) For purposes of this section, the terms "breach"
8 and "breach of the security of the system" mean unlawful and
9 unauthorized acquisition of computerized data that materially
10 compromises the security, confidentiality, or integrity of
11 personal information maintained by the person. Good faith
12 acquisition of personal information by an employee or agent of
13 the person is not a breach or breach of the security of the
14 system, provided the information is not used for a purpose
15 unrelated to the business or subject to further unauthorized
16 use.
17 (5) For purposes of this section, the term "personal
18 information" means an individual's first name, first initial
19 and last name, or any middle name and last name, in
20 combination with any one or more of the following data
21 elements when the data elements are not encrypted:
22 (a) Social security number.
23 (b) Driver's license number or Florida Identification
24 Card number.
25 (c) Account number, credit card number, or debit card
26 number, in combination with any required security code, access
27 code, or password that would permit access to an individual's
28 financial account.
29
30 For purposes of this section, the term "personal information"
31 does not include publicly available information that is
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1 lawfully made available to the general public from federal,
2 state, or local government records or widely distributed
3 media.
4 (6) For purposes of this section, notice may be
5 provided by one of the following methods:
6 (a) Written notice;
7 (b) Electronic notice, if the notice provided is
8 consistent with the provisions regarding electronic records
9 and signatures set forth in 15 U.S.C. s. 7001; or
10 (c) Substitute notice, if the person demonstrates that
11 the cost of providing notice would exceed $250,000, the
12 affected class of subject persons to be notified exceeds
13 500,000, or the person does not have sufficient contact
14 information. Substitute notice shall consist of all of the
15 following:
16 1. Electronic mail or e-mail notice when the person
17 has an electronic mail or e-mail address for the subject
18 persons.
19 2. Conspicuous posting of the notice on the web page
20 of the person, if the person maintains a web page.
21 3. Notification to major statewide media.
22 (7) For purposes of this section, the term
23 "unauthorized person" means any person who does not have
24 permission from, or a password issued by, the person who
25 stores the computerized data to acquire such data, but does
26 not include any individual to whom the personal information
27 pertains.
28 (8) For purposes of this section, the term "person"
29 means a person as defined in s. 1.01(3). For purposes of this
30 section, the State of Florida, as well as any of its agencies
31 or political subdivisions, and any of the agencies of its
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1 political subdivisions, constitutes a person.
2 (9) Notwithstanding subsection (6), a person who
3 maintains:
4 (a) The person's own notification procedures as part
5 of an information security or privacy policy for the treatment
6 of personal information, which procedures are otherwise
7 consistent with the timing requirements of this part; or
8 (b) A notification procedure pursuant to the rules,
9 regulations, procedures, or guidelines established by the
10 person's primary or functional federal regulator,
11
12 shall be deemed to be in compliance with the notification
13 requirements of this section if the person notifies subject
14 persons in accordance with the person's policies or the rules,
15 regulations, procedures, or guidelines established by the
16 primary or functional federal regulator in the event of a
17 breach of security of the system.
18 (10)(a) Notwithstanding subsection (2), notification
19 is not required if, after an appropriate investigation and
20 after consultation with relevant federal, state, and local
21 agencies responsible for law enforcement, the person
22 reasonably determines that the breach has not and will not
23 likely result in harm to the individuals whose personal
24 information has been acquired and accessed. Such a
25 determination must be documented in writing and the
26 documentation must be maintained for 5 years.
27 (b) Any person required to document a failure to
28 notify affected persons who fails to document the failure as
29 required in this subsection or who, if documentation was
30 created, fails to maintain the documentation for the full 5
31 years as required in this subsection is liable for an
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1 administrative fine in the amount of up to $50,000 for such
2 failure.
3 (c) The administrative sanctions outlined in this
4 subsection shall not apply in the case of personal information
5 in the custody of any governmental agency or subdivision,
6 unless that governmental agency or subdivision has entered
7 into a contract with a contractor or third-party administrator
8 to provide governmental services. In such case the contractor
9 or third-party administrator shall be a person to whom the
10 administrative sanctions outlined in this subsection would
11 apply, although such contractor or third-party administrator
12 found in violation of the documentation and maintenance of
13 documentation requirements in this subsection would not have
14 an action for contribution or set-off available against the
15 employing agency or subdivision.
16 (11) The Department of Legal Affairs may institute
17 proceedings to assess and collect the fines provided in this
18 section.
19 Section 3. This act shall take effect July 1, 2005.
20
21
22 ================ T I T L E A M E N D M E N T ===============
23 And the title is amended as follows:
24 Delete everything before the enacting clause
25
26 and insert:
27 A bill to be entitled
28 An act relating to unlawful use of personal
29 identification information; amending s.
30 817.568, F.S.; including other information
31 within the definition of the term "personal
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1 identification information"; defining the term
2 "counterfeit or fictitious personal
3 identification information"; revising criminal
4 penalties relating to the offense of
5 fraudulently using, or possessing with intent
6 to fraudulently use, personal identification
7 information; providing minimum mandatory terms
8 of imprisonment; creating the offenses of
9 willfully and fraudulently using, or possessing
10 with intent to fraudulently use, personal
11 identification information concerning a
12 deceased individual; providing criminal
13 penalties; providing for minimum mandatory
14 terms of imprisonment; creating the offense of
15 willfully and fraudulently creating or using,
16 or possessing with intent to fraudulently use,
17 counterfeit or fictitious personal
18 identification information; providing criminal
19 penalties; providing for reclassification of
20 offenses under certain circumstances; providing
21 for reduction or suspension of sentences under
22 certain circumstances; creating s. 817.5681,
23 F.S.; requiring business persons maintaining
24 computerized data that includes personal
25 information to provide notice of breaches of
26 system security under certain circumstances;
27 providing requirements; providing for
28 administrative fines; providing exceptions and
29 limitations; authorizing delays of such
30 disclosures under certain circumstances;
31 providing definitions; providing for
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Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. CS for SB 978
Barcode 173482
1 alternative notice methods; specifying
2 conditions of compliance for persons
3 maintaining certain alternative notification
4 procedures; specifying conditions under which
5 notification is not required; providing
6 requirements for documentation and maintenance
7 of documentation; providing an administrative
8 fine for failing to document certain failures
9 to comply; providing for application of
10 administrative sanctions to certain persons
11 under certain circumstances; authorizing the
12 Department of Legal Affairs to institute
13 proceedings to assess and collect fines;
14 providing an effective date.
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