Florida Senate - 2013                                     SB 846
       
       
       
       By Senator Brandes
       
       
       
       
       22-00191F-13                                           2013846__
    1                        A bill to be entitled                      
    2         An act relating to search and seizure of a portable
    3         electronic device; providing legislative findings and
    4         intent; defining the term “portable electronic
    5         device”; providing that information contained in a
    6         portable electronic device is not subject to a search
    7         by a law enforcement officer incident to an arrest
    8         except pursuant to a warrant issued by a duly
    9         authorized judicial officer using procedures
   10         established by law; providing exceptions; prohibiting
   11         location informational tracking; providing legislative
   12         findings and intent; defining terms; prohibiting a
   13         government entity from obtaining the location
   14         information of an electronic device without a valid
   15         search warrant issued by a duly authorized judicial
   16         officer; providing that a search warrant may not be
   17         issued for the location of an electronic device for a
   18         period of time longer than is necessary to achieve the
   19         objective of the search warrant authorization;
   20         providing time periods for the validity of a search
   21         warrant; providing criteria by which to extend a
   22         search warrant for location information; providing
   23         exceptions to the requirement to obtain a search
   24         warrant for location information; providing an
   25         effective date.
   26  
   27  Be It Enacted by the Legislature of the State of Florida:
   28  
   29         Section 1. Portable electronic device; prohibited search
   30  and seizure.—
   31         (1) FINDINGS.—The Legislature finds that:
   32         (a) The number of residents of this state using and
   33  carrying portable electronic devices is growing at a rapidly
   34  increasing rate. These devices can store, and do encourage the
   35  storing of, an almost limitless amount of personal and private
   36  information. Commonly linked to the Internet, these devices are
   37  used to access personal and business information and databases
   38  in computers and servers that are located anywhere in the world.
   39  A user of a portable electronic device has a reasonable and
   40  justifiable expectation of privacy in the information that these
   41  devices contain and can access through the Internet.
   42         (b) The right of the people to be secure in their persons,
   43  houses, papers, and effects against unreasonable searches and
   44  seizures, and against the unreasonable interception of private
   45  communications by any means, shall not be violated.
   46         (c) No warrant shall be issued except upon probable cause,
   47  supported by affidavit, particularly describing the place or
   48  places to be searched, the person or persons, thing or things to
   49  be seized, the communication to be intercepted, and the nature
   50  of evidence to be obtained.
   51         (d) The intrusion on the privacy of information and the
   52  freedom of communication of any person who is arrested is of
   53  such enormity that the officer who makes the arrest must obtain
   54  a warrant to search the information contained in, or accessed
   55  through, the arrested person’s portable electronic device, such
   56  as a cellular telephone.
   57         (2) INTENT.—It is the intent of the Legislature that this
   58  section prohibit the search of information contained in a
   59  portable electronic device, as defined in this section, by a law
   60  enforcement agency or other governmental entity at any time
   61  except pursuant to a warrant issued by a duly authorized
   62  judicial officer using established procedures.
   63         (3) DEFINITION.—As used in this section, the term “portable
   64  electronic device” means an object capable of being easily
   65  transported or conveyed by a person which is capable of
   66  creating, receiving, accessing, or storing electronic data or
   67  communications and that communicates with, by any means, another
   68  entity or individual.
   69         (4) PROHIBITED ACTS.—
   70         (a) The contents and communications of a portable
   71  electronic device, including, but not limited to, data or
   72  information contained in or transmitted from the portable
   73  electronic device, are not subject to a search or seizure by a
   74  law enforcement agency or other governmental entity except
   75  pursuant to a warrant issued by a duly authorized judicial
   76  officer using the procedures established by law.
   77         (b) Except as provided in paragraph (a), this section does
   78  not:
   79         1. Curtail reliance by a law enforcement agency or other
   80  governmental entity on lawful exceptions to the warrant
   81  requirement;
   82         2. Apply in cases of a search conducted incident to
   83  national security; or
   84         3. Apply in cases of a search for a missing child who is
   85  less than 18 years of age.
   86         4. Apply to transponders used for the purpose of assessing
   87  or collecting toll.
   88         5.Apply whenever the government entity reasonably believes
   89  that an emergency involving immediate danger of death or serious
   90  physical injury to a person requires the search or seizure,
   91  without delay, of the contents of a portable electronic device
   92  concerning a specific person or persons and that a warrant
   93  cannot be obtained in time to prevent the identified danger, or
   94  the possessor of the portable electronic device, in good faith,
   95  believes that an emergency involves the danger of death.
   96  
   97  The government entity seeking the contents of the portable
   98  electronic device shall file with the appropriate court a
   99  written statement setting forth the facts giving rise to the
  100  emergency and the facts as to why the person or persons whose
  101  contents of a portable electronic device was sought are believed
  102  to be important in addressing the emergency, no later than 48
  103  hours after seeking disclosure. Private entities providing
  104  electronic communications services shall not be made responsible
  105  for ensuring that government entities comply with this section.
  106         Section 2. Location informational tracking; prohibited
  107  search and seizure.-
  108         (1) FINDINGS.-The Legislature finds that existing law
  109  authorizes a court to issue a warrant for the search of a place
  110  and the seizure of property or things identified in the warrant
  111  when there is probable cause to believe that specified grounds
  112  exist. The Legislature also finds that existing law provides for
  113  a warrant procedure for the acquisition of stored communications
  114  in the possession of a provider of electronic communication
  115  service or a remote computing service.
  116         (2) INTENT.-It is the intent of the Legislature to prohibit
  117  a government entity from obtaining the location information of
  118  an electronic device without a valid search warrant issued by a
  119  duly authorized judicial officer unless certain exceptions
  120  apply, including in an emergency or when requested by the owner
  121  of the device. However, it is also the intent of the Legislature
  122  that this bill, with certain exceptions, prohibits the use of
  123  information obtained in violation of this section in a civil or
  124  administrative hearing.
  125         (3) DEFINITIONS.-As used in this section the term:
  126         (a) “Electronic communication service” means a service that
  127  provides to its users the ability to send or receive wire or
  128  electronic communications.
  129         (b) “Government entity” means a state or local agency,
  130  including, but not limited to, a law enforcement entity or any
  131  other investigative entity, agency, department, division,
  132  bureau, board, or commission, or an individual acting or
  133  purporting to act for or on behalf of a state or local agency.
  134         (c) “Location information” means information, concerning
  135  the location of an electronic device, including both the current
  136  location and any previous location of the device, that, in whole
  137  or in part, is generated, derived from, or obtained by the
  138  operation of an electronic device.
  139         (d) “Location information service” means the provision of a
  140  global positioning service or other mapping, locational, or
  141  directional information service.
  142         (e) “Owner” means the person or entity recognized by the
  143  law as having the legal title, claim, or right to an electronic
  144  device.
  145         (f) “Portable electronic device” means an object capable of
  146  being easily transported or conveyed by a person which is
  147  capable of creating, receiving, accessing, or storing electronic
  148  data or communications and that communicates with, by any means,
  149  another entity or individual.
  150         (g) “Remote computing service” means the provision of
  151  computer storage or processing services by means of an
  152  electronic communications system.
  153         (h) “User” means a person or entity that uses an electronic
  154  device.
  155         (4) PROHIBITED ACTS.-
  156         (a) A law enforcement agency or other government entity may
  157  not obtain the location information of an electronic device
  158  without a valid search warrant issued by a duly authorized
  159  judicial officer using procedures established pursuant to law.
  160         (b)1. A search warrant may not be issued for the location
  161  of an electronic device pursuant to this section for a period of
  162  time longer than is necessary to achieve the objective of the
  163  authorization, and in any event no longer than 30 days,
  164  commencing on the day the location information is initially
  165  obtained, or 10 days after the issuance of the warrant,
  166  whichever comes first.
  167         2. Extensions of a warrant may be granted, but only upon a
  168  judge finding continuing probable cause and that the extension
  169  is necessary to achieve the objective of the authorization. Each
  170  extension granted for a warrant pursuant to this section shall
  171  be for no longer than the authorizing judge deems necessary to
  172  achieve the purposes for which the warrant was originally
  173  granted, but in any event, shall be for no longer than 30 days.
  174         (5) EXCEPTIONS.—Notwithstanding subsection (4), a
  175  government entity may obtain location information without a
  176  search warrant if disclosure of the location information is not
  177  prohibited by federal law, in any of the following
  178  circumstances:
  179         (a)Transponders used for the purpose of assessing or
  180  collecting tolls.
  181         (b) Reliance by a law enforcement agency or other
  182  governmental entity on lawful exceptions to the warrant
  183  requirement.
  184         (c)Cases of a search conducted incident to a national
  185  security event.
  186         (d) Cases of a search for a missing child who is less than
  187  18 years of age.
  188         (e) In order to respond to the user’s call for emergency
  189  services.
  190         (f) With the informed, affirmative consent of the owner or
  191  user of the electronic device concerned, provided that the owner
  192  or user may not consent to the disclosure of location
  193  information if the device is known or believed to be in the
  194  possession of, or attached to a possession of, a third party
  195  known to the owner or user, unless that third party is less than
  196  18 years of age. The informed, affirmative consent of the owner
  197  or user of the electronic device concerned may not be used as
  198  consent to disclose the location information of another portable
  199  electronic device that may be remotely linked or connected to
  200  the owner or user of the portable electronic device concerned.
  201         (g) With the informed, affirmative consent of the legal
  202  guardian or next of kin of the electronic device’s user, if the
  203  user is believed to be deceased or has been reported missing and
  204  unable to be contacted.
  205         (h) If the government entity reasonably believes that an
  206  emergency involving immediate danger of death or serious
  207  physical injury to a person requires the disclosure, without
  208  delay, of location information concerning a specific person or
  209  persons and that a warrant cannot be obtained in time to prevent
  210  the identified danger and the possessor of the location
  211  information, in good faith, believes that an emergency involving
  212  danger of death or serious physical injury to a person requires
  213  the disclosure without delay.
  214  
  215  The government entity seeking the location information shall
  216  file with the appropriate court a written statement setting
  217  forth the facts giving rise to the emergency and the facts as to
  218  why the person or persons whose location information was sought
  219  are believed to be important in addressing the emergency, no
  220  later than 48 hours after seeking disclosure. Private entities
  221  providing electronic communications services shall not be made
  222  responsible for ensuring that government entities comply with
  223  this section.
  224         (6) CAUSE OF ACTION.—This section does not create a cause
  225  of action against any foreign or Florida private entity, its
  226  officers, employees, agents, or other specified persons, for
  227  providing location information.
  228         Section 3. This act shall take effect July 1, 2013.