Florida Senate - 2013 SENATOR AMENDMENT
Bill No. CS for CS for SB 92
Barcode 638734
LEGISLATIVE ACTION
Senate . House
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Floor: WD .
04/03/2013 09:59 AM .
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Senator Brandes moved the following:
1 Senate Amendment (with title amendment)
2
3 Between lines 53 and 54
4 insert:
5 Section 1. Portable electronic device; prohibited search
6 and seizure.—
7 (1) FINDINGS.—The Legislature finds that:
8 (a) The number of residents of this state using and
9 carrying portable electronic devices is growing exponentially.
10 These devices are capable of storing and accessing a nearly
11 limitless amount of personal and private information. Commonly
12 linked to the Internet, these devices are used to access
13 personal and business information and databases in computers and
14 servers that are located anywhere in the world. A user of a
15 portable electronic device has a reasonable and justifiable
16 expectation of privacy in the information that these devices
17 contain and can access through the Internet.
18 (b) The right of the people to be secure in their persons,
19 houses, papers, and effects against unreasonable searches and
20 seizures, and against the unreasonable interception of private
21 communications by any means, may not be violated.
22 (c) A warrant may not be issued except upon probable cause,
23 supported by affidavit, particularly describing the place or
24 places to be searched, the person or persons, thing or things to
25 be seized, the communication to be intercepted, and the nature
26 of evidence to be obtained.
27 (d) The intrusion on the privacy of information and the
28 freedom of communication of any person who is arrested is of
29 such enormity that the officer who makes the arrest must obtain
30 a warrant to search the information contained in, or accessed
31 through, the arrested person’s portable electronic device, such
32 as a cellular telephone.
33 (2) INTENT.—It is the intent of the Legislature that this
34 section prohibit the search of information contained in a
35 portable electronic device, as defined in this section, by a law
36 enforcement agency or other governmental entity incident to
37 arrest except pursuant to a warrant issued by a duly authorized
38 judicial officer using established procedures.
39 (3) DEFINITION.—As used in this section, the term “portable
40 electronic device” means an object capable of being easily
41 transported or conveyed by a person which is capable of
42 creating, receiving, accessing, or storing electronic data or
43 communications and communicates by any means with another entity
44 or individual.
45 (4) PROHIBITED ACTS.—
46 (a) The contents and communications of a portable
47 electronic device, including, but not limited to, data or
48 information contained in or transmitted from the portable
49 electronic device, are not subject to a search or seizure
50 incident to arrest by a law enforcement agency or other
51 governmental entity except pursuant to a warrant issued by a
52 duly authorized judicial officer using the procedures
53 established by law.
54 (b) Incident to an arrest, a law enforcement agency or
55 other governmental entity may temporarily maintain custody of
56 and may employ a device designed to temporarily disable
57 electronic devices while awaiting the issuance of a warrant by a
58 duly authorized judicial officer.
59 (c) Except as provided in paragraph (a), this section does
60 not:
61 1. Operate to curtail reliance by a law enforcement agency
62 or other governmental entity on any other lawful exceptions to
63 the warrant requirement.
64 2. Prevent a governmental entity from acting upon a high
65 risk of a terrorist attack by a specific individual or
66 organization if the United States Secretary of Homeland Security
67 determines that credible intelligence indicates that there is
68 such a risk.
69 3. Apply in cases of a search for a missing child who is
70 less than 18 years of age, or a special needs or elderly adult.
71 4. Apply to transponders used for the purpose of assessing
72 or collecting tolls.
73 5. Apply when the search incident to an arrest is strictly
74 of the physical components or features of the portable
75 electronic device and conducted out of concern for the safety of
76 law enforcement officers.
77 6. Apply to searches incident to an arrest regarding an
78 internal affairs investigation of a law enforcement officer or
79 personnel, conducted by a law enforcement agency or other
80 governmental entity that employs sworn law enforcement officers.
81 7. Apply to a device used to determine the location of an
82 individual who has been required as part of a court order or
83 adjudication to wear such a device.
84 8. Apply whenever the governmental entity reasonably
85 believes that an emergency involving immediate danger of death
86 or serious physical injury to a person or the danger of escape
87 of a prisoner or suspect requires the search or seizure, without
88 delay, of the contents of a portable electronic device
89 concerning a specific person or persons and that a warrant
90 cannot be obtained in time to prevent the identified danger, or
91 the possessor of the portable electronic device, in good faith,
92 believes that an emergency involves the danger of death.
93
94 Within 48 hours after seeking disclosure, the governmental
95 entity seeking the contents of the portable electronic device
96 shall file with the appropriate court a written statement
97 setting forth the facts giving rise to the emergency and the
98 facts that lead it to believe that the contents of a portable
99 electronic device are important in addressing the emergency.
100 Private entities providing electronic communications services
101 may not be held responsible for ensuring that governmental
102 entities comply with this section.
103 (5) REMEDY.—
104 (a) Any aggrieved person in a trial, hearing, or proceeding
105 in or before a court, department, officer, agency, regulatory
106 body, or other authority may move to suppress the contents of
107 any information contained in a portable electronic device, or
108 evidence derived therefrom, on the grounds that:
109 1. The information was unlawfully obtained;
110 2. The search warrant under which it was obtained is
111 insufficient on its face; or
112 3. The information was not obtained in conformity with the
113 search warrant.
114
115 Such motion shall be made before the trial, hearing, or
116 proceeding unless there is no opportunity to make such motion or
117 the person was not aware of the grounds of the motion. If the
118 motion is granted, the information or evidence derived therefrom
119 shall be suppressed. The judge, upon the filing of such motion
120 by the aggrieved person, may make available to the aggrieved
121 person or his or her counsel for inspection such portions of the
122 information or evidence derived therefrom as the judge
123 determines to be in the interest of justice.
124 (b) In addition to any other right to appeal, the state has
125 the right to appeal from an order granting a motion to suppress
126 made under paragraph (a) or the denial of an application for a
127 search warrant if the attorney certifies to the judge or other
128 official granting such motion or denying such application that
129 the appeal is not taken for purposes of delay. Such appeal shall
130 be taken within 30 days after the date the order was entered and
131 shall be diligently prosecuted.
132 (c) The remedies and sanctions described herein with
133 respect to the information contained in a portable electronic
134 device are the only judicial remedies and sanctions for
135 violations of those sections involving such information.
136 Section 3. Location informational tracking; prohibited
137 search and seizure.-
138 (1) FINDINGS.-The Legislature finds that existing law
139 authorizes a court to issue a warrant for the search of a place
140 and the seizure of property or things identified in the warrant
141 when there is probable cause to believe that specified grounds
142 exist. The Legislature also finds that existing law provides for
143 a judicial procedure for the acquisition of stored
144 communications in the possession of a provider of electronic
145 communication service or a remote computing service.
146 (2) INTENT.-It is the intent of the Legislature to prohibit
147 a governmental entity from obtaining the location information of
148 an electronic device without a valid court order issued by a
149 duly authorized judicial officer unless certain exceptions
150 apply, including in an emergency or when requested by the owner
151 of the device. However, it is also the intent of the Legislature
152 that this act, with certain exceptions, prohibits the use of
153 information obtained in violation of this section in a civil or
154 administrative hearing.
155 (3) DEFINITIONS.-As used in this section, the term:
156 (a) “Electronic communication service” means a service that
157 provides to its users the ability to send or receive wire or
158 electronic communications.
159 (b) “Governmental entity” means a state or local agency,
160 including, but not limited to, a law enforcement entity or any
161 other investigative entity, agency, department, division,
162 bureau, board, or commission, or an individual acting or
163 purporting to act for or on behalf of a state or local agency.
164 (c) “Location information” means information, concerning
165 the location of an electronic device, including both the current
166 location and any previous location of the device, which, in
167 whole or in part, is generated, derived from, or obtained by the
168 operation of an electronic device.
169 (d) “Location information service” means the provision of a
170 global positioning service or other mapping, locational, or
171 directional information service.
172 (e) “Owner” means the person or entity recognized by the
173 law as having the legal title, claim, or right to an electronic
174 device.
175 (f) “Portable electronic device” means an object capable of
176 being easily transported or conveyed by a person which is
177 capable of creating, receiving, accessing, or storing electronic
178 data or communications and communicates by any means with
179 another entity or individual.
180 (g) “Remote computing service” means the provision of
181 computer storage or processing services by means of an
182 electronic communications system.
183 (h) “User” means a person or entity that uses an electronic
184 device.
185 (4) PROHIBITED ACTS.-
186 (a) A law enforcement agency or other governmental entity
187 may not obtain the location information of an electronic device
188 without a valid court order issued by a duly authorized judicial
189 officer using the procedure set forth in this section.
190 (b) An investigative or law enforcement officer may make
191 application to a judge of competent jurisdiction for an order
192 authorizing or approving the search for and seizure of the
193 location information related to an electronic device.
194 (c) The application must include:
195 1. A statement of the identity of the applicant and the
196 identity of the law enforcement agency conducting the
197 investigation.
198 2. A certification by the applicant that the information
199 likely to be obtained is relevant to an ongoing criminal
200 investigation being conducted by the investigating agency.
201 3. A statement of the offense to which the information
202 likely to be obtained relates.
203 4. A statement as to whether it may be necessary to monitor
204 the electronic device outside the jurisdiction of the court from
205 which authorization is being sought.
206 (d) If the court finds that the required certification and
207 statements have been made in the application, the court shall
208 enter an ex parte order authorizing the monitoring of an
209 electronic device. Such order may authorize the monitoring of
210 the device within the jurisdiction of the court and outside that
211 jurisdiction, but within this state.
212 (e) A court may not require greater specificity or
213 additional information beyond that which is required by this
214 section as a requisite for issuing an order.
215 (f) A court order may not be issued for the location of an
216 electronic device pursuant to this section for a period of time
217 longer than is necessary to achieve the objective of the
218 authorization, and in any event no longer than 30 days,
219 commencing on the day the order is issued, or 10 days after the
220 location information is initially obtained, whichever comes
221 first.
222 (g) Extensions of an order may be granted, but only upon a
223 judge finding continuing probable cause and that the extension
224 is necessary to achieve the objective of the authorization. Each
225 extension granted for an order pursuant to this section may not
226 exceed the time period that the authorizing judge deems
227 necessary to achieve the purposes for which the order was
228 originally granted, but in any event, may not exceed 60 days.
229 (5) EXCEPTIONS.—Notwithstanding subsection (4), a
230 governmental entity may obtain location information without a
231 court order if disclosure of the location information is not
232 prohibited by federal law and any of the following circumstances
233 exists:
234 (a) Transponders used for the purpose of assessing or
235 collecting tolls.
236 (b) Reliance by a law enforcement agency or other
237 governmental entity on lawful exceptions to the warrant
238 requirement.
239 (c) A high risk of a terrorist attack by a specific
240 individual or organization if the United States Secretary of
241 Homeland Security determines that credible intelligence
242 indicates that there is such a risk.
243 (d) Cases of a search for a missing child who is less than
244 18 years of age, or a special needs or elderly adult.
245 (e) In order to respond to the user’s call for emergency
246 services.
247 (f) With the informed, affirmative consent of the owner or
248 user of the electronic device; however the owner or user may not
249 consent to the disclosure of location information if the device
250 is known or believed to be in the possession of, or attached to
251 a possession of, a third party known to the owner or user,
252 unless the third party is under 18 years of age. The informed,
253 affirmative consent of the owner or user of the electronic
254 device may not be used as consent to disclose the location
255 information of another portable electronic device that may be
256 remotely linked or connected to the owner or user of the subject
257 portable electronic device.
258 (g) With the informed, affirmative consent of the legal
259 guardian or next of kin of the electronic device’s user, if the
260 user is believed to be deceased or has been reported missing and
261 unable to be contacted.
262 (h) If the governmental entity reasonably believes that an
263 emergency involving immediate danger of death or serious
264 physical injury to a person requires the disclosure, without
265 delay, of location information concerning a specific person or
266 persons and that a warrant cannot be obtained in time to prevent
267 the identified danger and the possessor of the location
268 information, in good faith, believes that an emergency involving
269 danger of death or serious physical injury to a person requires
270 the disclosure without delay.
271
272 Within 48 hours of seeking disclosure, the governmental entity
273 seeking the location information shall file with the appropriate
274 court a written statement setting forth the facts giving rise to
275 the emergency and the facts as to why the person whose location
276 information was sought is believed to be important in addressing
277 the emergency. Private entities providing electronic
278 communications services shall not be made responsible for
279 ensuring that governmental entities comply with this section.
280 (6) REMEDY.—
281 (a) Any aggrieved person in a trial, hearing, or proceeding
282 in or before a court, department, officer, agency, regulatory
283 body, or other authority may move to suppress the contents of
284 information contained in a portable electronic device or
285 evidence derived therefrom, on the grounds that:
286 1. The information was unlawfully obtained;
287 2. The order of authorization or approval under which it
288 was obtained is insufficient on its face; or
289 3. The information was not obtained in conformity with the
290 order of authorization or approval.
291
292 Such motion shall be made before the trial, hearing, or
293 proceeding unless there was no opportunity to make such motion
294 or the person was not aware of the grounds of the motion. If the
295 motion is granted, the information or evidence derived therefrom
296 shall be suppressed. The judge, upon the filing of such motion
297 by the aggrieved person, may make available to the aggrieved
298 person or his or her counsel for inspection such portions of the
299 information or evidence derived therefrom as the judge
300 determines to be in the interest of justice.
301 (b) In addition to any other right to appeal, the state has
302 the right to appeal from an order granting a motion to suppress
303 made under paragraph (a) or the denial of an application for an
304 order of approval if the attorney certifies to the judge or
305 other official granting such motion or denying such application
306 that the appeal is not taken for purposes of delay. Such appeal
307 shall be taken within 30 days after the date the order was
308 entered and shall be diligently prosecuted.
309 (c) The remedies and sanctions described herein with
310 respect to the information contained in a portable electronic
311 device are the only judicial remedies and sanctions for
312 violations of those sections involving such information.
313 (7) CAUSE OF ACTION.—This section does not create a cause
314 of action against any foreign or Florida private entity, its
315 officers, employees, agents, or other specified persons for
316 providing location information.
317 Section 4. This act shall take effect July 1, 2013.
318
319 ================= T I T L E A M E N D M E N T ================
320 And the title is amended as follows:
321 Delete line 12
322 and insert:
323
324 of the act; providing legislative findings and intent;
325 defining the term “portable electronic device”;
326 providing that information contained in a portable
327 electronic device is not subject to a search by a law
328 enforcement officer incident to an arrest except
329 pursuant to a warrant issued by a duly authorized
330 judicial officer using procedures established by law;
331 providing exceptions; providing a remedy; prohibiting
332 location informational tracking; providing legislative
333 findings and intent; defining terms; prohibiting a
334 governmental entity from obtaining the location
335 information of an electronic device without a valid
336 court order issued by a duly authorized judicial
337 officer; providing that a court order may not be
338 issued for the location of an electronic device for a
339 period of time longer than is necessary to achieve the
340 objective of the court order; providing time periods
341 for the validity of a court order; providing criteria
342 by which a court order for location information may be
343 extended; providing exceptions to the requirement that
344 a court order be obtained for location information;
345 providing a remedy; providing applicability; providing
346 an effective date.