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.