Florida Senate - 2013 CS for SB 846 By the Committee on Criminal Justice; and Senators Brandes, Negron, and Soto 591-01873-13 2013846c1 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; providing a 11 remedy; prohibiting location informational tracking; 12 providing legislative findings and intent; defining 13 terms; prohibiting a government entity from obtaining 14 the location information of an electronic device 15 without a valid court order issued by a duly 16 authorized judicial officer; providing that a court 17 order may not be issued for the location of an 18 electronic device for a period of time longer than is 19 necessary to achieve the objective of the court order 20 authorization; providing time periods for the validity 21 of a court order; providing criteria by which to 22 extend a court order for location information; 23 providing exceptions to the requirement to obtain a 24 court order for location information; providing a 25 remedy; providing an 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 incident to 61 arrest 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 74 incident to arrest by a law enforcement agency or other 75 governmental entity except pursuant to a warrant issued by a 76 duly authorized judicial officer using the procedures 77 established by law. 78 (b) Except as provided in paragraph (a), this section does 79 not: 80 1. Curtail reliance by a law enforcement agency or other 81 governmental entity on lawful exceptions to the warrant 82 requirement; 83 2. Apply in cases of a search conducted incident to 84 national security; or 85 3. Apply in cases of a search for a missing child who is 86 less than 18 years of age. 87 4. Apply to transponders used for the purpose of assessing 88 or collecting toll. 89 5. Apply whenever the government entity reasonably believes 90 that an emergency involving immediate danger of death or serious 91 physical injury to a person requires the search or seizure, 92 without delay, of the contents of a portable electronic device 93 concerning a specific person or persons and that a warrant 94 cannot be obtained in time to prevent the identified danger, or 95 the possessor of the portable electronic device, in good faith, 96 believes that an emergency involves the danger of death. 97 98 The government entity seeking the contents of the portable 99 electronic device shall file with the appropriate court a 100 written statement setting forth the facts giving rise to the 101 emergency and the facts as to why the person or persons whose 102 contents of a portable electronic device was sought are believed 103 to be important in addressing the emergency, no later than 48 104 hours after seeking disclosure. Private entities providing 105 electronic communications services shall not be made responsible 106 for ensuring that government entities comply with this section. 107 (5) REMEDY.— 108 (a) Any aggrieved person in any trial, hearing, or 109 proceeding in or before any court, department, officer, agency, 110 regulatory body, or other authority may move to suppress the 111 contents of any information contained in a portable electronic 112 device or evidence derived therefrom, on the grounds that: 113 1. The information was unlawfully obtained; 114 2. The search warrant under which it was obtained is 115 insufficient on its face; or 116 3. The information was not obtained in conformity with the 117 search warrant. 118 119 Such motion shall be made before the trial, hearing, or 120 proceeding unless there was no opportunity to make such motion 121 or the person was not aware of the grounds of the motion. If the 122 motion is granted, the information or evidence derived 123 therefrom, shall be suppressed. The judge, upon the filing of 124 such motion by the aggrieved person, may make available to the 125 aggrieved person or his or her counsel for inspection such 126 portions of the information or evidence derived therefrom as the 127 judge determines to be in the interest of justice. 128 (b) In addition to any other right to appeal, the state 129 shall have the right to appeal from an order granting a motion 130 to suppress made under paragraph (a) or the denial of an 131 application for a search warrant if the attorney shall certify 132 to the judge or other official granting such motion or denying 133 such application that the appeal is not taken for purposes of 134 delay. Such appeal shall be taken within 30 days after the date 135 the order was entered and shall be diligently prosecuted. 136 (c) The remedies and sanctions described herein with 137 respect to the information contained in a portable electronic 138 device are the only judicial remedies and sanctions for 139 violations of those sections involving such information. 140 Section 2. Location informational tracking; prohibited 141 search and seizure.- 142 (1) FINDINGS.-The Legislature finds that existing law 143 authorizes a court to issue a warrant for the search of a place 144 and the seizure of property or things identified in the warrant 145 when there is probable cause to believe that specified grounds 146 exist. The Legislature also finds that existing law provides for 147 a judicial procedure for the acquisition of stored 148 communications in the possession of a provider of electronic 149 communication service or a remote computing service. 150 (2) INTENT.-It is the intent of the Legislature to prohibit 151 a government entity from obtaining the location information of 152 an electronic device without a valid court order issued by a 153 duly authorized judicial officer unless certain exceptions 154 apply, including in an emergency or when requested by the owner 155 of the device. However, it is also the intent of the Legislature 156 that this bill, with certain exceptions, prohibits the use of 157 information obtained in violation of this section in a civil or 158 administrative hearing. 159 (3) DEFINITIONS.-As used in this section the term: 160 (a) “Electronic communication service” means a service that 161 provides to its users the ability to send or receive wire or 162 electronic communications. 163 (b) “Government entity” means a state or local agency, 164 including, but not limited to, a law enforcement entity or any 165 other investigative entity, agency, department, division, 166 bureau, board, or commission, or an individual acting or 167 purporting to act for or on behalf of a state or local agency. 168 (c) “Location information” means information, concerning 169 the location of an electronic device, including both the current 170 location and any previous location of the device, that, in whole 171 or in part, is generated, derived from, or obtained by the 172 operation of an electronic device. 173 (d) “Location information service” means the provision of a 174 global positioning service or other mapping, locational, or 175 directional information service. 176 (e) “Owner” means the person or entity recognized by the 177 law as having the legal title, claim, or right to an electronic 178 device. 179 (f) “Portable electronic device” means an object capable of 180 being easily transported or conveyed by a person which is 181 capable of creating, receiving, accessing, or storing electronic 182 data or communications and that communicates with, by any means, 183 another entity or individual. 184 (g) “Remote computing service” means the provision of 185 computer storage or processing services by means of an 186 electronic communications system. 187 (h) “User” means a person or entity that uses an electronic 188 device. 189 (4) PROHIBITED ACTS.- 190 (a) A law enforcement agency or other government entity may 191 not obtain the location information of an electronic device 192 without a valid court order issued by a duly authorized judicial 193 officer using the procedure set forth in this section. 194 (b) An investigative or law enforcement officer may make 195 application to a judge of competent jurisdiction for an order 196 authorizing or approving the search for and seizure of the 197 location information related to an electronic device. 198 (c) The application must include: 199 1. A statement of the identity of the applicant and the 200 identity of the law enforcement agency conducting the 201 investigation. 202 2. A certification by the applicant that the information 203 likely to be obtained is relevant to an ongoing criminal 204 investigation being conducted by the investigating agency. 205 3. A statement of the offense to which the information 206 likely to be obtained relates. 207 4. A statement whether it may be necessary to monitor the 208 electronic device outside the jurisdiction of the court from 209 which authorization is being sought. 210 (d) If the court finds that the required certification and 211 statements have been made in the application, the court shall 212 enter an ex parte order authorizing the monitoring of an 213 electronic device. Such order may authorize the monitoring of 214 the device within the jurisdiction of the court and outside that 215 jurisdiction but within the State of Florida. 216 (e) A court may not require greater specificity or 217 additional information beyond that which is required by this 218 section as a requisite for issuing an order. 219 (f) A court order may not be issued for the location of an 220 electronic device pursuant to this section for a period of time 221 longer than is necessary to achieve the objective of the 222 authorization, and in any event no longer than 30 days, 223 commencing on the day the order is issued, or 10 days after the 224 location information is initially obtained whichever comes 225 first. 226 (g) Extensions of an order may be granted, but only upon a 227 judge finding continuing probable cause and that the extension 228 is necessary to achieve the objective of the authorization. Each 229 extension granted for an order pursuant to this section shall be 230 for no longer than the authorizing judge deems necessary to 231 achieve the purposes for which the order was originally granted, 232 but in any event, shall be for no longer than 30 days. 233 (5) EXCEPTIONS.—Notwithstanding subsection (4), a 234 government entity may obtain location information without a 235 search warrant if disclosure of the location information is not 236 prohibited by federal law, in any of the following 237 circumstances: 238 (a) Transponders used for the purpose of assessing or 239 collecting tolls. 240 (b) Reliance by a law enforcement agency or other 241 governmental entity on lawful exceptions to the warrant 242 requirement. 243 (c) Cases of a search conducted incident to a national 244 security event. 245 (d) Cases of a search for a missing child who is less than 246 18 years of age. 247 (e) In order to respond to the user’s call for emergency 248 services. 249 (f) With the informed, affirmative consent of the owner or 250 user of the electronic device concerned, provided that the owner 251 or user may not consent to the disclosure of location 252 information if the device is known or believed to be in the 253 possession of, or attached to a possession of, a third party 254 known to the owner or user, unless that third party is less than 255 18 years of age. The informed, affirmative consent of the owner 256 or user of the electronic device concerned may not be used as 257 consent to disclose the location information of another portable 258 electronic device that may be remotely linked or connected to 259 the owner or user of the portable electronic device concerned. 260 (g) With the informed, affirmative consent of the legal 261 guardian or next of kin of the electronic device’s user, if the 262 user is believed to be deceased or has been reported missing and 263 unable to be contacted. 264 (h) If the government entity reasonably believes that an 265 emergency involving immediate danger of death or serious 266 physical injury to a person requires the disclosure, without 267 delay, of location information concerning a specific person or 268 persons and that a warrant cannot be obtained in time to prevent 269 the identified danger and the possessor of the location 270 information, in good faith, believes that an emergency involving 271 danger of death or serious physical injury to a person requires 272 the disclosure without delay. 273 274 The government entity seeking the location information shall 275 file with the appropriate court a written statement setting 276 forth the facts giving rise to the emergency and the facts as to 277 why the person or persons whose location information was sought 278 are believed to be important in addressing the emergency, no 279 later than 48 hours after seeking disclosure. Private entities 280 providing electronic communications services shall not be made 281 responsible for ensuring that government entities comply with 282 this section. 283 (6) REMEDY.— 284 (a) Any aggrieved person in any trial, hearing, or 285 proceeding in or before any court, department, officer, agency, 286 regulatory body, or other authority may move to suppress the 287 contents of any information contained in a portable electronic 288 device or evidence derived therefrom, on the grounds that: 289 1. The information was unlawfully obtained; 290 2. The order of authorization or approval under which it 291 was obtained is insufficient on its face; or 292 3. The information was not obtained in conformity with the 293 order of authorization or approval. 294 295 Such motion shall be made before the trial, hearing, or 296 proceeding unless there was no opportunity to make such motion 297 or the person was not aware of the grounds of the motion. If the 298 motion is granted, the information or evidence derived 299 therefrom, shall be suppressed. The judge, upon the filing of 300 such motion by the aggrieved person, may make available to the 301 aggrieved person or his or her counsel for inspection such 302 portions of the information or evidence derived therefrom as the 303 judge determines to be in the interest of justice. 304 (b) In addition to any other right to appeal, the state 305 shall have the right to appeal from an order granting a motion 306 to suppress made under paragraph (a) or the denial of an 307 application for an order of approval if the attorney shall 308 certify to the judge or other official granting such motion or 309 denying such application that the appeal is not taken for 310 purposes of delay. Such appeal shall be taken within 30 days 311 after the date the order was entered and shall be diligently 312 prosecuted. 313 (c) The remedies and sanctions described herein with 314 respect to the information contained in a portable electronic 315 device are the only judicial remedies and sanctions for 316 violations of those sections involving such information. 317 (7) CAUSE OF ACTION.—This section does not create a cause 318 of action against any foreign or Florida private entity, its 319 officers, employees, agents, or other specified persons, for 320 providing location information. 321 Section 3. This act shall take effect July 1, 2013.