Senate Bill sb0446
CODING: Words stricken are deletions; words underlined are additions.
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
1
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2006 SB 446
32-353-06
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
2
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2006 SB 446
32-353-06
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.
3
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2006 SB 446
32-353-06
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
4
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2006 SB 446
32-353-06
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.
5
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2006 SB 446
32-353-06
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.
6
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2006 SB 446
32-353-06
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
7
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2006 SB 446
32-353-06
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
8
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2006 SB 446
32-353-06
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,
9
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2006 SB 446
32-353-06
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.
10
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2006 SB 446
32-353-06
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
11
CODING: Words stricken are deletions; words underlined are additions.