Florida Senate - 2018                          SENATOR AMENDMENT
       Bill No. CS for CS for CS for SB 1256
       
       
       
       
       
       
                                Ì739040xÎ739040                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                Floor: 1/AD/2R         .                                
             03/06/2018 11:01 AM       .                                
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       Senator Brandes moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 160 - 730
    4  and insert:
    5         (5)To safeguard the privacy of innocent persons, the
    6  Legislature recognizes that the subjective expectation of
    7  privacy in real-time cell-site location data, real-time precise
    8  global positioning system location data, and historical precise
    9  global positioning system location data that society is now
   10  prepared to accept is objectively reasonable. As such, the law
   11  enforcement collection of the precise location of a person,
   12  cellular phone, or portable electronic communication device
   13  without the consent of the person or owner of the cellular phone
   14  or portable electronic communication device should be allowed
   15  only when authorized by a warrant issued by a court of competent
   16  jurisdiction and should remain under the control and supervision
   17  of the authorizing court.
   18         (6)The Legislature recognizes that the use of portable
   19  electronic communication devices is growing at a rapidly
   20  increasing rate. These devices can store, and encourage the
   21  storing of, an almost limitless amount of personal and private
   22  information. Often linked to the Internet, these devices are
   23  commonly used to access personal and business information and
   24  databases in computers and servers that can be located anywhere
   25  in the world. The user of a portable electronic communication
   26  device has a reasonable and justifiable expectation of privacy
   27  in the information that these devices contain.
   28         (7)The Legislature recognizes that the use of household
   29  electronic devices, including microphone-enabled household
   30  devices, is growing at a rapidly increasing rate. These devices
   31  often contain microphones that listen for and respond to
   32  environmental cues. These household devices are generally
   33  connected to and communicate through the Internet, resulting in
   34  the storage of and accessibility to daily household information
   35  in a device itself or in a remote computing service. Persons
   36  should not have to choose between using household technological
   37  enhancements and conveniences or preserving the right to privacy
   38  in one’s home.
   39         Section 2. Subsection (2) of section 934.02, Florida
   40  Statutes, is amended, and subsections (27) and (28) are added to
   41  that section, to read:
   42         934.02 Definitions.—As used in this chapter:
   43         (2) “Oral communication” means any oral communication
   44  uttered by a person exhibiting an expectation that such
   45  communication is not subject to interception under circumstances
   46  justifying such expectation, including the use of a microphone
   47  enabled household device, and does not mean any public oral
   48  communication uttered at a public meeting or any electronic
   49  communication.
   50         (27)“Microphone-enabled household device” means a device,
   51  sensor, or other physical object within a residence:
   52         (a)Capable of connecting to the Internet, directly or
   53  indirectly, or to another connected device;
   54         (b)Capable of creating, receiving, accessing, processing,
   55  or storing electronic data or communications;
   56         (c)Which communicates with, by any means, another entity
   57  or individual; and
   58         (d)Which contains a microphone designed to listen for and
   59  respond to environmental cues.
   60         (28)“Portable electronic communication device” means an
   61  object capable of being easily transported or conveyed by a
   62  person which is capable of creating, receiving, accessing, or
   63  storing electronic data or communications and which communicates
   64  with, by any means, another device, entity, or individual.
   65         Section 3. Section 934.21, Florida Statutes, is amended to
   66  read:
   67         934.21 Unlawful access to stored communications;
   68  penalties.—
   69         (1) Except as provided in subsection (3), whoever:
   70         (a) Intentionally accesses without authorization a facility
   71  through which an electronic communication service is provided,
   72  or
   73         (b) Intentionally exceeds an authorization to access such
   74  facility,
   75  
   76  and thereby obtains, alters, or prevents authorized access to a
   77  wire or electronic communication while it is in electronic
   78  storage in such system shall be punished as provided in
   79  subsection (2).
   80         (2) The punishment for an offense under subsection (1) is
   81  as follows:
   82         (a) If the offense is committed for purposes of commercial
   83  advantage, malicious destruction or damage, or private
   84  commercial gain, the person is:
   85         1. In the case of a first offense under this subsection,
   86  commits guilty of a misdemeanor of the first degree, punishable
   87  as provided in s. 775.082, s. 775.083, or s. 934.41.
   88         2. In the case of any subsequent offense under this
   89  subsection, commits guilty of a felony of the third degree,
   90  punishable as provided in s. 775.082, s. 775.083, s. 775.084, or
   91  s. 934.41.
   92         (b) In any other case, the person commits is guilty of a
   93  misdemeanor of the second degree, punishable as provided in s.
   94  775.082 or s. 775.083.
   95         (3) Subsection (1) does not apply with respect to conduct
   96  authorized:
   97         (a) By the person or entity providing a wire, oral, or
   98  electronic communications service, including through cellular
   99  phones, portable electronic communication devices, or
  100  microphone-enabled household devices;
  101         (b) By a user of a wire, oral, or electronic communications
  102  service, including through cellular phones, portable electronic
  103  communication devices, or microphone-enabled household devices,
  104  with respect to a communication of or intended for that user; or
  105         (c) In s. 934.09 or, s. 934.23;, or s. 934.24
  106         (d) In chapter 933; or
  107         (e) For accessing for a legitimate business purpose
  108  information that is not personally identifiable or that has been
  109  collected in a way that prevents identification of the user of
  110  the device.
  111         Section 4. Section 934.42, Florida Statutes, is amended to
  112  read:
  113         934.42 Mobile tracking device and location tracking
  114  authorization.—
  115         (1)As used in this section:
  116         (a)“Mobile tracking device” means an electronic or
  117  mechanical device which permits the tracking of the movement of
  118  a person or object.
  119         (b)“Real-time location tracking” means:
  120         1.Installation and use of a mobile tracking device on the
  121  object to be tracked;
  122         2.Acquisition of real-time cell-site location data; or
  123         3.Acquisition of real-time precise global positioning
  124  system location data.
  125         (c)“Historical location data” means the acquisition of
  126  historical precise global positioning system location data in
  127  the possession of a provider.
  128         (2)(1) An investigative or law enforcement officer may make
  129  application to a judge of competent jurisdiction for a warrant
  130  an order authorizing or approving real-time location tracking
  131  the installation and use of a mobile tracking device or the
  132  acquisition of historical location data in the possession of the
  133  provider.
  134         (3)(2) An application under subsection (2) (1) of this
  135  section must include:
  136         (a) A statement of the identity of the applicant and the
  137  identity of the law enforcement agency conducting the
  138  investigation.
  139         (b) A statement setting forth a reasonable period of time
  140  that the mobile tracking device may be used or the location data
  141  may be obtained in real-time, not to exceed 45 days from the
  142  date the warrant is issued. The court may, for good cause, grant
  143  one or more extensions for a reasonable period of time, not to
  144  exceed 45 days each. When seeking historical location data, the
  145  applicant must specify a data range for the data sought
  146  certification by the applicant that the information likely to be
  147  obtained is relevant to an ongoing criminal investigation being
  148  conducted by the investigating agency.
  149         (c) A statement of the offense to which the information
  150  likely to be obtained relates.
  151         (d) A statement as to whether it may be necessary to use
  152  and monitor the mobile tracking device outside the jurisdiction
  153  of the court from which authorization is being sought.
  154         (4)(3) Upon application made as provided under subsection
  155  (3)(2), the court, if it finds probable cause that the
  156  certification and finds that the statements required by
  157  subsection (3)(2) have been made in the application, shall grant
  158  a warrant enter an ex parte order authorizing real-time location
  159  tracking the installation and use of a mobile tracking device or
  160  the acquisition of historical location data. Such warrant order
  161  may authorize the use of the mobile tracking device within the
  162  jurisdiction of the court and outside that jurisdiction but
  163  within the State of Florida if the mobile tracking device is
  164  installed within the jurisdiction of the court. The warrant must
  165  command the officer to complete any installation authorized by
  166  the warrant within a specified period of time not to exceed 10
  167  calendar days.
  168         (5)(4) A court may not require greater specificity or
  169  additional information beyond that which is required by law and
  170  this section as a requisite for issuing a warrant an order.
  171         (6)Within 10 days after the time period specified in
  172  paragraph (3)(b) has ended, the officer executing a warrant must
  173  return the warrant to the issuing judge. When the warrant is
  174  authorizing historical location data, the officer executing the
  175  warrant must return the warrant to the issuing judge within 10
  176  days after receipt of the records. The officer may do so by
  177  reliable electronic means.
  178         (7)Within 10 days after the time period specified in
  179  paragraph (3)(b) has ended, the officer executing a warrant must
  180  serve a copy of the warrant on the person who, or whose
  181  property, was tracked. When the warrant is authorizing
  182  historical location data, the officer executing the warrant must
  183  serve a copy of the warrant on the person whose data was
  184  obtained within 10 days after receipt of the records. Service
  185  may be accomplished by delivering a copy to the person who, or
  186  whose property, was tracked or data obtained or by leaving a
  187  copy at the person’s residence or usual place of abode with an
  188  individual of suitable age and discretion who resides at that
  189  location and by mailing a copy to the person’s last known
  190  address. Upon a showing of good cause to a court of competent
  191  jurisdiction, the court may grant one or more postponements of
  192  this notice for a period of 90 days each.
  193         (8)(5) The standards established by Florida courts and the
  194  United States Supreme Court for the installation, use, or and
  195  monitoring of mobile tracking devices and the acquisition of
  196  location data shall apply to the installation, use, or
  197  monitoring and use of any device and the acquisition of location
  198  data as authorized by this section.
  199         (6)As used in this section, a “tracking device” means an
  200  electronic or mechanical device which permits the tracking of
  201  the movement of a person or object.
  202         (9)(a)Notwithstanding any other provision of this chapter,
  203  any investigative or law enforcement officer specially
  204  designated by the Governor, the Attorney General, the statewide
  205  prosecutor, or a state attorney acting pursuant to this chapter
  206  who reasonably determines that:
  207         1.An emergency exists which:
  208         a.Involves immediate danger of death or serious physical
  209  injury to any person or the danger of escape of a prisoner; and
  210         b.Requires the installation or use of a mobile tracking
  211  device before a warrant authorizing such installation or use
  212  can, with due diligence, be obtained; and
  213         2.There are grounds upon which a warrant could be issued
  214  under this chapter to authorize such installation or use,
  215  
  216  may install or use a mobile tracking device if, within 48 hours
  217  after the installation or use has occurred or begins to occur, a
  218  warrant approving the installation or use is issued in
  219  accordance with this section.
  220         (b)In the absence of an authorizing warrant, such
  221  installation or use must immediately terminate when the
  222  information sought is obtained, when the application for the
  223  warrant is denied, or when 48 hours have lapsed since the
  224  installation or use of the mobile tracking device began,
  225  whichever is earlier.
  226  
  227  ================= T I T L E  A M E N D M E N T ================
  228  And the title is amended as follows:
  229         Delete lines 2 - 120
  230  and insert:
  231         An act relating to the search of the content,
  232         information, and communications of cellular phones,
  233         portable electronic communication devices, and
  234         microphone-enabled household devices; amending s.
  235         934.01, F.S.; revising and providing legislative
  236         findings; amending s. 934.02, F.S.; redefining the
  237         term “oral communication”; defining the terms
  238         “microphone-enabled household device” and “portable
  239         electronic communication device”; amending s. 934.21,
  240         F.S.; revising the exceptions to conduct that
  241         constitute unlawful access to stored communications;
  242         conforming a provision to changes made by the act;
  243         amending s. 934.42, F.S.; defining the terms “mobile
  244         tracking device,” “real-time location tracking,” and
  245         “historical location data”; authorizing an
  246         investigative or law enforcement officer to apply to a
  247         judge of competent jurisdiction for a warrant, rather
  248         than an order, authorizing real-time location tracking
  249         or acquisition of historical location data; requiring
  250         an application for a warrant to include a statement of
  251         a reasonable period of time that the mobile tracking
  252         device may be used or the location data may be
  253         obtained in real-time, not to exceed a specified
  254         limit; authorizing a court to grant extensions that do
  255         not individually exceed a specified limit, for good
  256         cause; deleting a provision requiring a certification
  257         to be included in the application for an order;
  258         providing that the court, if it finds probable cause
  259         and finds the required statements in the application,
  260         must grant a warrant; specifying the warrant may
  261         authorize real-time location tracking or acquisition
  262         of historical location data; providing the warrant may
  263         authorize the use of the mobile tracking device as
  264         specified; requiring the warrant to command the
  265         officer to complete any installation authorized by the
  266         warrant within a certain timeframe; providing
  267         requirements for the return of the warrant to the
  268         judge and service of a copy of the warrant on the
  269         person who was tracked or whose property was tracked;
  270         specifying how a warrant authorizing historical
  271         location data must be returned and served; authorizing
  272         a court, for good cause, to postpone the notice
  273         requirement for a specified time period; deleting the
  274         definition of “tracking device”; requiring that the
  275         standards established by Florida courts for the
  276         installation, use, or monitoring of mobile tracking
  277         devices and the acquisition of location data apply to
  278         the installation, use, or monitoring of any devices
  279         and the acquisition of location data as authorized;
  280         authorizing any investigative or law enforcement
  281         officer who is specially designated by certain persons
  282         and who makes specified determinations to install or
  283         use a mobile tracking device under certain
  284         circumstances; providing requirements for the
  285         installation and use of such mobile tracking devices;
  286         providing an effective date.