Florida Senate - 2013 SENATOR AMENDMENT Bill No. CS for CS for SB 92 Barcode 841214 LEGISLATIVE ACTION Senate . House . . . Floor: WD . 04/04/2013 10:19 AM . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— Senator Brandes moved the following: 1 Senate Amendment (with title amendment) 2 3 Between lines 53 and 54 4 insert: 5 Section 2. 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. 317 318 ================= T I T L E A M E N D M E N T ================ 319 And the title is amended as follows: 320 Delete line 12 321 and insert: 322 of the act; providing legislative findings and intent; 323 defining the term “portable electronic device”; 324 providing that information contained in a portable 325 electronic device is not subject to a search by a law 326 enforcement officer incident to an arrest except 327 pursuant to a warrant issued by a duly authorized 328 judicial officer using procedures established by law; 329 providing exceptions; providing a remedy; prohibiting 330 location informational tracking; providing legislative 331 findings and intent; defining terms; prohibiting a 332 governmental entity from obtaining the location 333 information of an electronic device without a valid 334 court order issued by a duly authorized judicial 335 officer; providing that a court order may not be 336 issued for the location of an electronic device for a 337 period of time longer than is necessary to achieve the 338 objective of the court order; providing time periods 339 for the validity of a court order; providing criteria 340 by which a court order for location information may be 341 extended; providing exceptions to the requirement that 342 a court order be obtained for location information; 343 providing a remedy; providing applicability; providing 344 an effective date.