Florida Senate - 2013 COMMITTEE AMENDMENT Bill No. SB 846 Barcode 743804 LEGISLATIVE ACTION Senate . House Comm: RCS . 03/05/2013 . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— The Committee on Criminal Justice (Smith) recommended the following: 1 Senate Amendment (with title amendment) 2 3 Delete lines 60 - 224 4 and insert: 5 enforcement agency or other governmental entity incident to 6 arrest except pursuant to a warrant issued by a duly authorized 7 judicial officer using established procedures. 8 (3) DEFINITION.—As used in this section, the term “portable 9 electronic device” means an object capable of being easily 10 transported or conveyed by a person which is capable of 11 creating, receiving, accessing, or storing electronic data or 12 communications and that communicates with, by any means, another 13 entity or individual. 14 (4) PROHIBITED ACTS.— 15 (a) The contents and communications of a portable 16 electronic device, including, but not limited to, data or 17 information contained in or transmitted from the portable 18 electronic device, are not subject to a search or seizure by a 19 law enforcement agency or other governmental entity except 20 pursuant to a warrant issued by a duly authorized judicial 21 officer using the procedures established by law. 22 (b) Except as provided in paragraph (a), this section does 23 not: 24 1. Curtail reliance by a law enforcement agency or other 25 governmental entity on lawful exceptions to the warrant 26 requirement; 27 2. Apply in cases of a search conducted incident to 28 national security; or 29 3. Apply in cases of a search for a missing child who is 30 less than 18 years of age. 31 4. Apply to transponders used for the purpose of assessing 32 or collecting toll. 33 5. Apply whenever the government entity reasonably believes 34 that an emergency involving immediate danger of death or serious 35 physical injury to a person requires the search or seizure, 36 without delay, of the contents of a portable electronic device 37 concerning a specific person or persons and that a warrant 38 cannot be obtained in time to prevent the identified danger, or 39 the possessor of the portable electronic device, in good faith, 40 believes that an emergency involves the danger of death. 41 42 The government entity seeking the contents of the portable 43 electronic device shall file with the appropriate court a 44 written statement setting forth the facts giving rise to the 45 emergency and the facts as to why the person or persons whose 46 contents of a portable electronic device was sought are believed 47 to be important in addressing the emergency, no later than 48 48 hours after seeking disclosure. Private entities providing 49 electronic communications services shall not be made responsible 50 for ensuring that government entities comply with this section. 51 (5) Remedy.— 52 (a) Any aggrieved person in any trial, hearing, or 53 proceeding in or before any court, department, officer, agency, 54 regulatory body, or other authority may move to suppress the 55 contents of any information contained in a portable electronic 56 device or evidence derived therefrom, on the grounds that: 57 1. The information was unlawfully obtained; 58 2. The search warrant under which it was obtained is 59 insufficient on its face; or 60 3. The information was not obtained in conformity with the 61 search warrant. 62 63 Such motion shall be made before the trial, hearing, or 64 proceeding unless there was no opportunity to make such motion 65 or the person was not aware of the grounds of the motion. If the 66 motion is granted, the information or evidence derived 67 therefrom, shall be suppressed. The judge, upon the filing of 68 such motion by the aggrieved person, may make available to the 69 aggrieved person or his or her counsel for inspection such 70 portions of the information or evidence derived therefrom as the 71 judge determines to be in the interest of justice. 72 (b) In addition to any other right to appeal, the state 73 shall have the right to appeal from an order granting a motion 74 to suppress made under paragraph (a) or the denial of an 75 application for a search warrant if the attorney shall certify 76 to the judge or other official granting such motion or denying 77 such application that the appeal is not taken for purposes of 78 delay. Such appeal shall be taken within 30 days after the date 79 the order was entered and shall be diligently prosecuted. 80 (c) The remedies and sanctions described herein with 81 respect to the information contained in a portable electronic 82 device are the only judicial remedies and sanctions for 83 violations of those sections involving such information. 84 Section 2. Location informational tracking; prohibited 85 search and seizure.- 86 (1) FINDINGS.-The Legislature finds that existing law 87 authorizes a court to issue a warrant for the search of a place 88 and the seizure of property or things identified in the warrant 89 when there is probable cause to believe that specified grounds 90 exist. The Legislature also finds that existing law provides for 91 a judicial procedure for the acquisition of stored 92 communications in the possession of a provider of electronic 93 communication service or a remote computing service. 94 (2) INTENT.-It is the intent of the Legislature to prohibit 95 a government entity from obtaining the location information of 96 an electronic device without a valid court order issued by a 97 duly authorized judicial officer unless certain exceptions 98 apply, including in an emergency or when requested by the owner 99 of the device. However, it is also the intent of the Legislature 100 that this bill, with certain exceptions, prohibits the use of 101 information obtained in violation of this section in a civil or 102 administrative hearing. 103 (3) DEFINITIONS.-As used in this section the term: 104 (a) “Electronic communication service” means a service that 105 provides to its users the ability to send or receive wire or 106 electronic communications. 107 (b) “Government entity” means a state or local agency, 108 including, but not limited to, a law enforcement entity or any 109 other investigative entity, agency, department, division, 110 bureau, board, or commission, or an individual acting or 111 purporting to act for or on behalf of a state or local agency. 112 (c) “Location information” means information, concerning 113 the location of an electronic device, including both the current 114 location and any previous location of the device, that, in whole 115 or in part, is generated, derived from, or obtained by the 116 operation of an electronic device. 117 (d) “Location information service” means the provision of a 118 global positioning service or other mapping, locational, or 119 directional information service. 120 (e) “Owner” means the person or entity recognized by the 121 law as having the legal title, claim, or right to an electronic 122 device. 123 (f) “Portable electronic device” means an object capable of 124 being easily transported or conveyed by a person which is 125 capable of creating, receiving, accessing, or storing electronic 126 data or communications and that communicates with, by any means, 127 another entity or individual. 128 (g) “Remote computing service” means the provision of 129 computer storage or processing services by means of an 130 electronic communications system. 131 (h) “User” means a person or entity that uses an electronic 132 device. 133 (4) PROHIBITED ACTS.- 134 (a) A law enforcement agency or other government entity may 135 not obtain the location information of an electronic device 136 without a valid court order issued by a duly authorized judicial 137 officer using the procedure set forth in this section. 138 (b) An investigative or law enforcement officer may make 139 application to a judge of competent jurisdiction for an order 140 authorizing or approving the search for and seizure of the 141 location information related to an electronic device. 142 (c) The application must include: 143 1. A statement of the identity of the applicant and the 144 identity of the law enforcement agency conducting the 145 investigation. 146 2. A certification by the applicant that the information 147 likely to be obtained is relevant to an ongoing criminal 148 investigation being conducted by the investigating agency. 149 3. A statement of the offense to which the information 150 likely to be obtained relates. 151 4. A statement whether it may be necessary to monitor the 152 electronic device outside the jurisdiction of the court from 153 which authorization is being sought. 154 (d) If the court finds that the required certification and 155 statements have been made in the application, the court shall 156 enter an ex parte order authorizing the monitoring of an 157 electronic device. Such order may authorize the monitoring of 158 the device within the jurisdiction of the court and outside that 159 jurisdiction but within the State of Florida. 160 (e) A court may not require greater specificity or 161 additional information beyond that which is required by this 162 section as a requisite for issuing an order. 163 (f) A court order may not be issued for the location of an 164 electronic device pursuant to this section for a period of time 165 longer than is necessary to achieve the objective of the 166 authorization, and in any event no longer than 30 days, 167 commencing on the day the order is issued, or 10 days after the 168 location information is initially obtained whichever comes 169 first. 170 (g) Extensions of an order may be granted, but only upon a 171 judge finding continuing probable cause and that the extension 172 is necessary to achieve the objective of the authorization. Each 173 extension granted for an order pursuant to this section shall be 174 for no longer than the authorizing judge deems necessary to 175 achieve the purposes for which the order was originally granted, 176 but in any event, shall be for no longer than 30 days. 177 (5) EXCEPTIONS.—Notwithstanding subsection (4), a 178 government entity may obtain location information without a 179 search warrant if disclosure of the location information is not 180 prohibited by federal law, in any of the following 181 circumstances: 182 (a) Transponders used for the purpose of assessing or 183 collecting tolls. 184 (b) Reliance by a law enforcement agency or other 185 governmental entity on lawful exceptions to the warrant 186 requirement. 187 (c) Cases of a search conducted incident to a national 188 security event. 189 (d) Cases of a search for a missing child who is less than 190 18 years of age. 191 (e) In order to respond to the user’s call for emergency 192 services. 193 (f) With the informed, affirmative consent of the owner or 194 user of the electronic device concerned, provided that the owner 195 or user may not consent to the disclosure of location 196 information if the device is known or believed to be in the 197 possession of, or attached to a possession of, a third party 198 known to the owner or user, unless that third party is less than 199 18 years of age. The informed, affirmative consent of the owner 200 or user of the electronic device concerned may not be used as 201 consent to disclose the location information of another portable 202 electronic device that may be remotely linked or connected to 203 the owner or user of the portable electronic device concerned. 204 (g) With the informed, affirmative consent of the legal 205 guardian or next of kin of the electronic device’s user, if the 206 user is believed to be deceased or has been reported missing and 207 unable to be contacted. 208 (h) If the government entity reasonably believes that an 209 emergency involving immediate danger of death or serious 210 physical injury to a person requires the disclosure, without 211 delay, of location information concerning a specific person or 212 persons and that a warrant cannot be obtained in time to prevent 213 the identified danger and the possessor of the location 214 information, in good faith, believes that an emergency involving 215 danger of death or serious physical injury to a person requires 216 the disclosure without delay. 217 218 The government entity seeking the location information shall 219 file with the appropriate court a written statement setting 220 forth the facts giving rise to the emergency and the facts as to 221 why the person or persons whose location information was sought 222 are believed to be important in addressing the emergency, no 223 later than 48 hours after seeking disclosure. Private entities 224 providing electronic communications services shall not be made 225 responsible for ensuring that government entities comply with 226 this section. 227 (6) Remedy.— 228 (a) Any aggrieved person in any trial, hearing, or 229 proceeding in or before any court, department, officer, agency, 230 regulatory body, or other authority may move to suppress the 231 contents of any information contained in a portable electronic 232 device or evidence derived therefrom, on the grounds that: 233 1. The information was unlawfully obtained; 234 2. The order of authorization or approval under which it 235 was obtained is insufficient on its face; or 236 3. The information was not obtained in conformity with the 237 order of authorization or approval. 238 239 Such motion shall be made before the trial, hearing, or 240 proceeding unless there was no opportunity to make such motion 241 or the person was not aware of the grounds of the motion. If the 242 motion is granted, the information or evidence derived 243 therefrom, shall be suppressed. The judge, upon the filing of 244 such motion by the aggrieved person, may make available to the 245 aggrieved person or his or her counsel for inspection such 246 portions of the information or evidence derived therefrom as the 247 judge determines to be in the interest of justice. 248 (b) In addition to any other right to appeal, the state 249 shall have the right to appeal from an order granting a motion 250 to suppress made under paragraph (a) or the denial of an 251 application for an order of approval if the attorney shall 252 certify to the judge or other official granting such motion or 253 denying such application that the appeal is not taken for 254 purposes of delay. Such appeal shall be taken within 30 days 255 after the date the order was entered and shall be diligently 256 prosecuted. 257 (c) The remedies and sanctions described herein with 258 respect to the information contained in a portable electronic 259 device are the only judicial remedies and sanctions for 260 violations of those sections involving such information. 261 (7) CAUSE OF ACTION.—This section does not create a cause 262 263 ================= T I T L E A M E N D M E N T ================ 264 And the title is amended as follows: 265 Delete lines 10 - 24 266 and insert: 267 established by law; providing exceptions; providing a 268 remedy; prohibiting location informational tracking; 269 providing legislative findings and intent; defining 270 terms; prohibiting a government entity from obtaining 271 the location information of an electronic device 272 without a valid court order issued by a duly 273 authorized judicial officer; providing that a court 274 order may not be issued for the location of an 275 electronic device for a period of time longer than is 276 necessary to achieve the objective of the court order 277 authorization; providing time periods for the validity 278 of a court order; providing criteria by which to 279 extend a court order for location information; 280 providing exceptions to the requirement to obtain a 281 court order for location information; providing a 282 remedy; providing an