Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. SB 978
Barcode 264672
CHAMBER ACTION
Senate House
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11 The Committee on Judiciary (Campbell) recommended the
12 following amendment:
13
14 Senate Amendment (with title amendment)
15 Delete everything after the enacting clause
16
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) that, 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 disclose any breach of the security
15 of the system, following discovery or notification of the
16 breach in the security of the data, to any resident of this
17 state whose unencrypted personal information was, or is
18 reasonably believed to have been, acquired by an unauthorized
19 person. The disclosure shall be made most expeditiously and
20 without unreasonable delay, consistent with the legitimate
21 needs of law enforcement, as provided in subsection (3) and
22 paragraph (9)(a), or any measures necessary to determine the
23 scope of the breach and restore the reasonable integrity of
24 the data system. Disclosure of the breach may only be delayed
25 indefinitely following its discovery under subsection (3).
26 Otherwise, disclosure must be made no later than 30 days
27 following the discovery of the breach.
28 (b) Any person required to make disclosures under
29 paragraph (a) who fails to do so within the time periods
30 provided in this subsection is liable for an administrative
31 fine in the amount of $1,000 for each day the breach goes
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1 undisclosed for up to 30 days.
2 (c) Except as required for investigations under
3 subsection (3), any person required to make disclosures under
4 paragraph (a) who fails to do so is subject to an
5 administrative fine of up to $50,000 for each 30-day period or
6 portion thereof up to 180 days unless acting under a court
7 order. If such disclosure is not made within 180 days, any
8 person required to make such disclosures under paragraph (a)
9 who fails to do so is subject to an administrative fine of up
10 to $500,000.
11 (d) The disclosure required under this subsection must
12 be made by each person in the state in possession of
13 computerized data. However, the administrative sanctions for
14 nondisclosure provided in this subsection shall not apply in
15 the case of computerized information in the custody of any
16 governmental agency or political subdivision, unless that
17 governmental agency or political subdivision has entered into
18 a contract with a contractor or third-party administrator to
19 provide governmental services. In such case, the contractor or
20 third-party administrator shall be a person to whom the
21 administrative sanctions provided in this subsection apply,
22 provided such contractor or third-party administrator found in
23 violation of the nondisclosure restrictions in this section
24 may not bring an action for contribution or set-off available
25 against the employing agency or subdivision.
26 (2)(a) Any person who maintains computerized data that
27 includes personal information on behalf of another business
28 entity shall notify the business entity for which the
29 information is maintained of any breach of the security of the
30 data within 72 hours after the discovery of the breach, if the
31 personal information was, or is reasonably believed to have
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1 been, acquired by an unauthorized person.
2 (b) Any person required to make disclosures under
3 paragraph (a) who fails to do so within the time periods
4 provided in this subsection is liable for an administrative
5 fine in the amount of $1,000 for each day the breach goes
6 undisclosed for up to 30 days.
7 (c) Except as required for investigations under
8 subsection (3), any person required to make disclosures under
9 paragraph (a) who fails to do so is subject to an
10 administrative fine of up to $50,000 for each 30-day period or
11 portion thereof up to 180 days unless acting under court
12 order. If such disclosure is not made within 180 days, any
13 person required to make disclosures under paragraph (a) who
14 fails to do so is subject to an administrative fine of up to
15 $500,000.
16 (d) The disclosure required under this subsection must
17 be made by each person in the state in possession of
18 computerized data. However, the administrative sanctions for
19 nondisclosure provided in this subsection shall not apply in
20 the case of computerized information in the custody of any
21 governmental agency or political subdivision unless that
22 governmental agency or political subdivision has entered into
23 a contract with a contractor or third-party administrator to
24 provide governmental services. In such case, the contractor or
25 third-party administrator shall be a person to whom the
26 administrative sanctions provided in this subsection would
27 apply, provided such contractor or third-party administrator
28 found in violation of the nondisclosure restrictions in this
29 subsection may not bring an action for contribution or set-off
30 available against the employing agency or subdivision.
31 (3) The notification required by this section may be
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1 delayed if a law enforcement agency determines that the
2 notification will impede a criminal investigation. The
3 notification required by this section shall be made after the
4 law enforcement agency determines that the notification will
5 not compromise the investigation. The delay in notification
6 allowed under this subsection shall not exceed 90 days unless
7 ordered by a court of competent jurisdiction.
8 (4) For purposes of this section, the term "breach of
9 the security of the system" means unauthorized acquisition of
10 computerized data that materially compromises the security,
11 confidentiality, or integrity of personal information
12 maintained by the person. Good faith acquisition of personal
13 information by an employee or agent of a person for the
14 purposes of the person is not a breach of the security of the
15 system, provided the information is not used for a purpose
16 unrelated to the business or subject to further unauthorized
17 disclosure.
18 (5) For purposes of this section, the term "personal
19 information" means an individual's first name or first initial
20 and last name in combination with any one or more of the
21 following data elements, when the data elements are not
22 encrypted:
23 (a) Social security number.
24 (b) Driver's license number or Florida identification
25 card number.
26 (c) Account number or credit or debit card number, in
27 combination with any required security code, access code, or
28 password that would permit access to an individual's financial
29 account.
30 (6) For purposes of this section, notice may be
31 provided by one of the following methods:
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1 (a) Written notice;
2 (b) Electronic notice, if the notice provided is
3 consistent with the provisions regarding electronic records
4 and signatures set forth in 15 U.S.C. s. 7001; or
5 (c) Substitute notice, if the person demonstrates that
6 the cost of providing notice would exceed $250,000, the
7 affected class of subject persons to be notified exceeds
8 500,000, or the person does not have sufficient contact
9 information. Substitute notice shall consist of all of the
10 following:
11 1. Electronic mail notice when the person has an
12 electronic mail address for the subject person.
13 2. Conspicuous posting of the notice on the person's
14 website, if the person maintains a website.
15 3. Notification to major statewide media.
16 (7) For purposes of this section, the term
17 "unauthorized person" means any person who is not the person
18 to whom the personal information belongs and who does not have
19 permission from or a password issued by the person who stores
20 the computerized data to acquire such data.
21 (8) Notwithstanding subsection (6), a person who
22 maintains his or her own notification procedures as part of an
23 information security or privacy policy for the treatment of
24 personal information and which procedures are otherwise
25 consistent with the timing requirements of this part shall be
26 deemed to be in compliance with the notification requirements
27 of this section if the person notifies subject persons in
28 accordance with its procedures in the event of a breach of
29 security of the system.
30 (9)(a) Notwithstanding subsection (2), notification is
31 not required if, after an appropriate investigation and after
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1 consultation with relevant federal, state, and local agencies
2 responsible for law enforcement, the person reasonably
3 determines that the breach has not and will not likely result
4 in harm to the individuals whose personal information has been
5 acquired and accessed. Such a determination must be documented
6 in writing and the documentation must be maintained for 5
7 years.
8 (b) Any person required to document a failure to
9 notify affected persons who fails to document the failure as
10 required in this subsection or who, if documentation was
11 created, fails to maintain the documentation for the full 5
12 years as required in this subsection is liable for an
13 administrative fine in the amount of up to $50,000 for such
14 failure.
15 (c) The documentation and maintenance of documentation
16 required under this subsection must be made by each person in
17 the state in possession of computerized data. However, the
18 administrative sanctions outlined in this subsection shall not
19 apply in the case of computerized information in the custody
20 of any governmental agency or political subdivision, unless
21 that governmental agency or political subdivision has entered
22 into a contract with a contractor or third-party administrator
23 to provide governmental services. In such case, the contractor
24 or third-party administrator shall be a person to whom the
25 administrative sanctions outlined in this subsection apply,
26 provided such contractor or third-party administrator found in
27 violation of the documentation and maintenance of
28 documentation requirements in this subsection may not bring an
29 action for contribution or set-off available against the
30 employing agency or subdivision.
31 (10) The Department of Legal Affairs may institute
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1 proceedings to assess and collect the fines provided in this
2 section.
3 Section 3. This act shall take effect July 1, 2005.
4
5
6 ================ T I T L E A M E N D M E N T ===============
7 And the title is amended as follows:
8 Delete everything before the enacting clause
9
10 and insert:
11 A bill to be entitled
12 An act relating to unlawful use of personal
13 identification information; amending s.
14 817.568, F.S.; including other information
15 within the definition of the term "personal
16 identification information"; defining the term
17 "counterfeit or fictitious personal
18 identification information"; revising criminal
19 penalties relating to the offense of
20 fraudulently using, or possessing with intent
21 to fraudulently use, personal identification
22 information; providing minimum mandatory terms
23 of imprisonment; creating the offenses of
24 willfully and fraudulently using, or possessing
25 with intent to fraudulently use, personal
26 identification information concerning a
27 deceased individual; providing criminal
28 penalties; providing for minimum mandatory
29 terms of imprisonment; creating the offense of
30 willfully and fraudulently creating or using,
31 or possessing with intent to fraudulently use,
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1 counterfeit or fictitious personal
2 identification information; providing criminal
3 penalties; providing for reclassification of
4 offenses under certain circumstances; providing
5 for reduction or suspension of sentences under
6 certain circumstances; creating s. 817.5681,
7 F.S.; requiring business persons maintaining
8 computerized data that includes personal
9 information to disclose breaches of system
10 security under certain circumstances; providing
11 requirements; providing for administrative
12 fines; providing exceptions and limitations;
13 authorizing delays of such disclosures under
14 certain circumstances; providing definitions;
15 providing for alternative notice methods;
16 specifying conditions of compliance for persons
17 maintaining certain alternative notification
18 procedures; specifying conditions under which
19 notification is not required; providing
20 requirements for documentation and maintenance
21 of documentation; providing an administrative
22 fine for failing to document certain failures
23 to comply; providing for application of
24 administrative sanctions to certain persons
25 under certain circumstances; authorizing the
26 Department of Legal Affairs to institute
27 proceedings to assess and collect fines;
28 providing an effective date.
29
30
31
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