Senate Bill sb0446

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    Florida Senate - 2006                                   SB 446

    By Senators Campbell and Miller





    32-353-06

  1                      A bill to be entitled

  2         An act relating to criminal use of personal

  3         identification; amending s. 817.568, F.S.;

  4         providing that it is a third-degree felony to

  5         willfully and without authorization disclose,

  6         sell, or transfer, or attempt to disclose,

  7         sell, or transfer, personal identification

  8         information concerning an individual, including

  9         information sent to a foreign country, without

10         first obtaining the consent of the individual;

11         providing criminal penalties; providing that a

12         violation of s. 817.568, F.S., is a deceptive

13         and unfair trade practice and a violation of

14         part II of ch. 501, F.S.; providing civil

15         penalties; providing that the remedies are

16         cumulative and not exclusive; providing an

17         effective date.

18  

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

20  

21         Section 1.  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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    Florida Senate - 2006                                   SB 446
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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  bank account number, credit or debit card number, or personal

31  identification number or code assigned to the holder of a

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    Florida Senate - 2006                                   SB 446
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 1  debit card by the issuer to permit authorized electronic use

 2  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;

 8         4.  Medical records;

 9         5.  Telecommunication identifying information or access

10  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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    Florida Senate - 2006                                   SB 446
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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 to a mandatory minimum sentence of 5 years'

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

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

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

28  or if the person fraudulently uses the personal identification

29  information of 30 or more individuals without their consent,

30  notwithstanding any other provision of law, the court shall

31  sentence any person convicted of committing the offense

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    Florida Senate - 2006                                   SB 446
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 1  described in this paragraph to a mandatory minimum sentence of

 2  10 years' imprisonment.

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

 4  prevents a court from imposing a greater sentence of

 5  incarceration as authorized by law. If the minimum mandatory

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

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

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

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

10  If the mandatory minimum terms of imprisonment under paragraph

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

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

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

14  court must include the mandatory minimum term of imprisonment

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

16         (4)  Any person who willfully and without authorization

17  possesses, uses, or attempts to use personal identification

18  information concerning an individual without first obtaining

19  that individual's consent, and who does so for the purpose of

20  harassing that individual, commits the offense of harassment

21  by use of personal identification information, which is a

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

23  775.082 or s. 775.083.

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

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

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

27  higher degree as follows:

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

29  as a felony of the third degree.

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

31  felony of the second degree.

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    Florida Senate - 2006                                   SB 446
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 1         (c)  A felony of the second degree is reclassified as a

 2  felony of the first degree.

 3  

 4  For purposes of sentencing under chapter 921 and incentive

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

 6  is reclassified under this subsection is ranked one level

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

 8  committed, and a misdemeanor offense that is reclassified

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

10  severity ranking chart in s. 921.0022.

11         (6)  Any person who willfully and without authorization

12  fraudulently uses personal identification information

13  concerning an individual who is less than 18 years of age

14  without first obtaining the consent of that individual or of

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

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

17  s. 775.084.

18         (7)  Any person who is in the relationship of parent or

19  legal guardian, or who otherwise exercises custodial authority

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

21  willfully and fraudulently uses personal identification

22  information of that individual commits a felony of the second

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

24  s. 775.084.

25         (8)(a)  Any person who willfully and fraudulently uses,

26  or possesses with intent to fraudulently use, personal

27  identification information concerning a deceased individual

28  commits the offense of fraudulent use or possession with

29  intent to use personal identification information of a

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

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

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    Florida Senate - 2006                                   SB 446
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 1         (b)  Any person who willfully and fraudulently uses

 2  personal identification information concerning a deceased

 3  individual commits a felony of the second degree, punishable

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

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

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

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

 8  uses the personal identification information of 10 or more but

 9  fewer than 20 deceased individuals. Notwithstanding any other

10  provision of law, the court shall sentence any person

11  convicted of committing the offense described in this

12  paragraph to a mandatory minimum sentence of 3 years'

13  imprisonment.

14         (c)  Any person who willfully and fraudulently uses

15  personal identification information concerning a deceased

16  individual commits the offense of aggravated fraudulent use of

17  the personal identification information of multiple deceased

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

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

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

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

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

23  uses the personal identification information of 20 or more but

24  fewer than 30 deceased individuals. Notwithstanding any other

25  provision of law, the court shall sentence any person

26  convicted of the offense described in this paragraph to a

27  minimum mandatory sentence of 5 years' imprisonment. If the

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

29  payment sought to be avoided, or the amount of the injury or

30  fraud perpetrated is $100,000 or more, or if the person

31  fraudulently uses the personal identification information of

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 1  30 or more deceased individuals, notwithstanding any other

 2  provision of law, the court shall sentence any person

 3  convicted of an offense described in this paragraph to a

 4  mandatory minimum sentence of 10 years' imprisonment.

 5         (9)  Any person who willfully and fraudulently creates

 6  or uses, or possesses with intent to fraudulently use,

 7  counterfeit or fictitious personal identification information

 8  concerning a fictitious individual, or concerning a real

 9  individual without first obtaining that real individual's

10  consent, with intent to use such counterfeit or fictitious

11  personal identification information for the purpose of

12  committing or facilitating the commission of a fraud on

13  another person, commits the offense of fraudulent creation or

14  use, or possession with intent to fraudulently use,

15  counterfeit or fictitious personal identification information,

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

17  775.082, s. 775.083, or s. 775.084.

18         (10)  Any person who commits an offense described in

19  this section and for the purpose of obtaining or using

20  personal identification information misrepresents himself or

21  herself to be a law enforcement officer; an employee or

22  representative of a bank, credit card company, credit

23  counseling company, or credit reporting agency; or any person

24  who wrongfully represents that he or she is seeking to assist

25  the victim with a problem with the victim's credit history

26  shall have the offense reclassified as follows:

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

28  reclassified as a felony of the third degree.

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

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

31  

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

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

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

 4  felony of the first degree punishable by a term of

 5  imprisonment not exceeding life, the offense is reclassified

 6  as a life felony.

 7  

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

 9  that is reclassified under this subsection is ranked one level

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

11  felony offense committed, and a misdemeanor offense that is

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

13  offense severity ranking chart.

14         (11)  A person who willfully and without authorization

15  discloses, sells, or transfers, or attempts to disclose, sell,

16  or transfer, personal identification information concerning an

17  individual, including personal identification information sent

18  to a foreign country, without first obtaining the consent of

19  the individual commits the offense of fraudulent disclosure,

20  sale, or transfer of personal identification information, a

21  felony of the third degree.

22         (12)  A person who violates this section commits a

23  deceptive and unfair trade practice in violation of part II of

24  chapter 501 and is subject to the penalties and remedies

25  provided under that chapter, in addition to remedies otherwise

26  available for such conduct.

27         (13)(11)  The prosecutor may move the sentencing court

28  to reduce or suspend the sentence of any person who is

29  convicted of a violation of this section and who provides

30  substantial assistance in the identification, arrest, or

31  conviction of any of that person's accomplices, accessories,

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 1  coconspirators, or principals or of any other person engaged

 2  in fraudulent possession or use of personal identification

 3  information. The arresting agency shall be given an

 4  opportunity to be heard in aggravation or mitigation in

 5  reference to any such motion. Upon good cause shown, the

 6  motion may be filed and heard in camera. The judge hearing the

 7  motion may reduce or suspend the sentence if the judge finds

 8  that the defendant rendered such substantial assistance.

 9         (14)(12)  This section does not prohibit any lawfully

10  authorized investigative, protective, or intelligence activity

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

12  political subdivisions, of any other state or its political

13  subdivisions, or of the Federal Government or its political

14  subdivisions.

15         (15)(13)(a)  In sentencing a defendant convicted of an

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

17  defendant make restitution under s. 775.089 to any victim of

18  the offense. In addition to the victim's out-of-pocket costs,

19  restitution may include payment of any other costs, including

20  attorney's fees incurred by the victim in clearing the

21  victim's credit history or credit rating, or any costs

22  incurred in connection with any civil or administrative

23  proceeding to satisfy any debt, lien, or other obligation of

24  the victim arising as the result of the actions of the

25  defendant.

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

27  necessary to correct any public record that contains false

28  information given in violation of this section.

29         (16)(14)  Prosecutions for violations of this section

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

31  by the statewide prosecutor.

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 1         (17)(15)  The Legislature finds that, in the absence of

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

 3  fails to give consent to the use of personal identification

 4  information is the county where the victim generally resides.

 5         (18)(16)  Notwithstanding any other provision of law,

 6  venue for the prosecution and trial of violations of this

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

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

 9  the victim generally resides.

10         (19)(17)  A prosecution of an offense prohibited under

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

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

13  a prosecution may be commenced within 1 year after discovery

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

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

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

17  5 years after the violation occurred.

18         Section 2.  This act shall take effect July 1, 2006.

19  

20            *****************************************

21                          SENATE SUMMARY

22    Provides that it is a third-degree felony to willfully
      and without authorization disclose, sell, or transfer, or
23    attempt to disclose, sell, or transfer, personal
      identification information concerning an individual,
24    including information sent to a foreign country, without
      first obtaining the consent of the individual. Provides
25    criminal penalties. Provides that a violation of the act
      is a deceptive and unfair trade practice. Provides civil
26    penalties. Provides that the remedies are cumulative and
      not exclusive.
27  

28  

29  

30  

31  

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