Florida Senate - 2018               CS for CS for CS for SB 1256
       
       
        
       By the Committees on Rules; Judiciary; and Criminal Justice; and
       Senator Brandes
       
       
       
       
       595-03542-18                                          20181256c3
    1                        A bill to be entitled                      
    2         An act relating to security of communications;
    3         amending s. 934.01, F.S.; revising and providing
    4         legislative findings; amending s. 934.02, F.S.;
    5         redefining the term “oral communication”; defining the
    6         terms “microphone-enabled household device” and
    7         “portable electronic communication device”; amending
    8         s. 934.21, F.S.; revising the exceptions to conduct
    9         that constitute unlawful access to stored
   10         communications; conforming a provision to changes made
   11         by the act; amending s. 934.23, F.S.; defining the
   12         term “investigative or law enforcement officer” and
   13         specifying that an exception to such definition is
   14         that in any criminal investigation a law enforcement
   15         agency must request a prosecutor obtain a subpoena for
   16         information obtainable by a subpoena; requiring a
   17         warrant for any content of a stored communications;
   18         deleting provisions relating to obtaining content of
   19         stored communications, with required subscriber
   20         notice, by obtaining a court order for disclosure or
   21         using a subpoena; deleting provisions relating to any
   22         electronic communication held or maintained in a
   23         remote computing service; deleting a provision on not
   24         providing notice applicable to a subpoena for basic
   25         subscriber information; repealing s. 934.24, F.S.;
   26         deleting provisions relating to backup protection for
   27         content of stored communication; deleting provisions
   28         authorizing a subscriber to seek a court order to
   29         quash such subpoena or vacate such court order for
   30         disclosure; amending 934.25, F.S., deleting provisions
   31         relating to delaying subscriber notice when such
   32         notice is required for obtaining contents of stored
   33         communications pursuant to a court order for
   34         disclosure or subpoena; deleting references to
   35         subscriber notice or delay of such notice in
   36         provisions relating to nondisclosure of a warrant,
   37         court order, or subpoena for stored communications;
   38         defining the term “adverse result”; creating s.
   39         934.255, F.S.; defining the terms “adverse result,”
   40         “child,” “investigative or law enforcement officer,”
   41         “sexual abuse of child,” and “supervisory official”;
   42         specifying an exception to the definition of the term
   43         “investigative or law enforcement officer” is that in
   44         any criminal investigation a law enforcement agency
   45         must request a prosecutor obtain a subpoena for
   46         information obtainable by a subpoena; authorizing an
   47         investigative or law enforcement officer conducting an
   48         investigation into specified matters to subpoena
   49         certain persons or entities for the production of
   50         records, documents, or other tangible things and
   51         testimony; authorizing an investigative or law
   52         enforcement officer conducting an investigation into
   53         specified matters to subpoena certain person or
   54         entities for subscriber or customer information
   55         relevant to stored communications; specifying
   56         requirements for the issuance of a subpoena;
   57         authorizing a subpoenaed person to petition a court
   58         for an order modifying or setting aside a prohibition
   59         on disclosure; authorizing, under certain
   60         circumstances, an investigative or law enforcement
   61         officer to retain subpoenaed records, documents, or
   62         other tangible objects; prohibiting the disclosure of
   63         a subpoena for a specified period if the disclosure
   64         might result in an adverse result; providing
   65         exceptions; requiring an investigative or law
   66         enforcement officer to maintain a true copy of a
   67         written certification required for nondisclosure;
   68         authorizing an investigative or law enforcement
   69         officer to apply to a court for an order prohibiting
   70         certain entities from notifying any person of the
   71         existence of a subpoena under certain circumstances;
   72         authorizing an investigative or law enforcement
   73         officer to petition a court to compel compliance with
   74         a subpoena; authorizing a court to punish a person who
   75         does not comply with a subpoena as indirect criminal
   76         contempt; providing criminal penalties; precluding a
   77         cause of action against certain entities or persons
   78         for providing information, facilities, or assistance
   79         in accordance with terms of a subpoena; providing for
   80         preservation of evidence pending issuance of legal
   81         process; providing that certain entities or persons
   82         shall be held harmless from any claim and civil
   83         liability resulting from disclosure of specified
   84         information; providing for reasonable compensation for
   85         reasonable expenses incurred in providing assistance;
   86         requiring that a subpoenaed witness be paid certain
   87         fees and mileage; amending s. 934.42, F.S.;
   88         authorizing an investigative or law enforcement
   89         officer to apply to a judge of competent jurisdiction
   90         for a warrant, rather than an order, authorizing the
   91         acquisition of cellular-site location data, precise
   92         global positioning satellite location data, or
   93         historical global positioning satellite location data;
   94         requiring an application for a warrant to include a
   95         statement of a reasonable period of time that a mobile
   96         tracking device may be used, not to exceed a specified
   97         limit; authorizing a court to grant extensions that do
   98         not individually exceed a specified limit, for good
   99         cause; deleting a provision requiring a certification
  100         to be included in the application for an order;
  101         requiring the warrant to command the officer to
  102         complete an installation authorized by the warrant
  103         within a certain timeframe; providing requirements for
  104         the return of the warrant to the judge and service of
  105         a copy of the warrant on the person who was tracked or
  106         whose property was tracked; authorizing a court, for
  107         good cause, to postpone the notice requirement for a
  108         specified time period; requiring that the standards
  109         established by Florida courts for the installation,
  110         use, or monitoring of mobile tracking devices apply to
  111         the installation, use, or monitoring of certain
  112         devices; redefining the term “tracking device”;
  113         authorizing any investigative or law enforcement
  114         officer who is specially designated by certain persons
  115         and who makes specified determinations to install or
  116         use a mobile tracking device under certain
  117         circumstances; providing requirements for the
  118         installation and use of such mobile tracking devices;
  119         amending s. 934.26, F.S.; conforming a provision to
  120         changes made by the act; providing an effective date.
  121          
  122  Be It Enacted by the Legislature of the State of Florida:
  123  
  124         Section 1. Section 934.01, Florida Statutes, is amended to
  125  read:
  126         934.01 Legislative findings.—On the basis of its own
  127  investigations and of published studies, the Legislature makes
  128  the following findings:
  129         (1) Wire communications are normally conducted through the
  130  use of facilities which form part of an intrastate network. The
  131  same facilities are used for interstate and intrastate
  132  communications.
  133         (2) In order to protect effectively the privacy of wire,
  134  and oral, and electronic communications, to protect the
  135  integrity of court and administrative proceedings, and to
  136  prevent the obstruction of intrastate commerce, it is necessary
  137  for the Legislature to define the circumstances and conditions
  138  under which the interception of wire, and oral, and electronic
  139  communications may be authorized and to prohibit any
  140  unauthorized interception of such communications and the use of
  141  the contents thereof in evidence in courts and administrative
  142  proceedings.
  143         (3) Organized criminals make extensive use of wire, and
  144  oral, and electronic communications in their criminal
  145  activities. The interception of such communications to obtain
  146  evidence of the commission of crimes or to prevent their
  147  commission is an indispensable aid to law enforcement and the
  148  administration of justice.
  149         (4) To safeguard the privacy of innocent persons, the
  150  interception of wire, or oral, or electronic communications when
  151  none of the parties to the communication has consented to the
  152  interception should be allowed only when authorized by a court
  153  of competent jurisdiction and should remain under the control
  154  and supervision of the authorizing court. Interception of wire,
  155  and oral, and electronic communications should further be
  156  limited to certain major types of offenses and specific
  157  categories of crime with assurance that the interception is
  158  justified and that the information obtained thereby will not be
  159  misused.
  160         (5)To safeguard the privacy of innocent persons, the
  161  Legislature recognizes that the subjective expectation of
  162  privacy in precision location data that society is now prepared
  163  to accept is objectively reasonable. As such, the law
  164  enforcement collection of the precise location of a person,
  165  cellular phone, or portable electronic communication device
  166  without the consent of the person or owner of the cellular phone
  167  or portable electronic communication device should be allowed
  168  only when authorized by a warrant issued by a court of competent
  169  jurisdiction and should remain under the control and supervision
  170  of the authorizing court.
  171         (6)The Legislature recognizes that the use of portable
  172  electronic communication devices is growing at a rapidly
  173  increasing rate. These devices can store, and encourage the
  174  storing of, an almost limitless amount of personal and private
  175  information. Often linked to the Internet, these devices are
  176  commonly used to access personal and business information and
  177  databases in computers and servers that can be located anywhere
  178  in the world. The user of a portable electronic communication
  179  device has a reasonable and justifiable expectation of privacy
  180  in the information that these devices contain.
  181         (7)The Legislature recognizes that the use of household
  182  electronic devices, including microphone-enabled household
  183  devices, is growing at a rapidly increasing rate. These devices
  184  often contain microphones that listen for and respond to
  185  environmental cues. These household devices are generally
  186  connected to and communicate through the Internet, resulting in
  187  the storage of and accessibility to daily household information
  188  in a device itself or in a remote computing service. Persons
  189  should not have to choose between using household technological
  190  enhancements and conveniences or preserving the right to privacy
  191  in one’s home.
  192         Section 2. Subsection (2) of section 934.02, Florida
  193  Statutes, is amended, and subsections (27) and (28) are added to
  194  that section, to read:
  195         934.02 Definitions.—As used in this chapter:
  196         (2) “Oral communication” means any oral communication
  197  uttered by a person exhibiting an expectation that such
  198  communication is not subject to interception under circumstances
  199  justifying such expectation, including the use of a microphone
  200  enabled household device, and does not mean any public oral
  201  communication uttered at a public meeting or any electronic
  202  communication.
  203         (27)“Microphone-enabled household device” means a device,
  204  sensor, or other physical object within a residence:
  205         (a)Capable of connecting to the Internet, directly or
  206  indirectly, or to another connected device;
  207         (b)Capable of creating, receiving, accessing, processing,
  208  or storing electronic data or communications;
  209         (c)Which communicates with, by any means, another entity
  210  or individual; and
  211         (d)Which contains a microphone designed to listen for and
  212  respond to environmental cues.
  213         (28)“Portable electronic communication device” means an
  214  object capable of being easily transported or conveyed by a
  215  person which is capable of creating, receiving, accessing, or
  216  storing electronic data or communications and which communicates
  217  with, by any means, another device, entity, or individual.
  218         Section 3. Section 934.21, Florida Statutes, is amended to
  219  read:
  220         934.21 Unlawful access to stored communications;
  221  penalties.—
  222         (1) Except as provided in subsection (3), whoever:
  223         (a) Intentionally accesses without authorization a facility
  224  through which an electronic communication service is provided,
  225  or
  226         (b) Intentionally exceeds an authorization to access such
  227  facility,
  228  
  229  and thereby obtains, alters, or prevents authorized access to a
  230  wire or electronic communication while it is in electronic
  231  storage in such system shall be punished as provided in
  232  subsection (2).
  233         (2) The punishment for an offense under subsection (1) is
  234  as follows:
  235         (a) If the offense is committed for purposes of commercial
  236  advantage, malicious destruction or damage, or private
  237  commercial gain, the person is:
  238         1. In the case of a first offense under this subsection,
  239  commits guilty of a misdemeanor of the first degree, punishable
  240  as provided in s. 775.082, s. 775.083, or s. 934.41.
  241         2. In the case of any subsequent offense under this
  242  subsection, commits guilty of a felony of the third degree,
  243  punishable as provided in s. 775.082, s. 775.083, s. 775.084, or
  244  s. 934.41.
  245         (b) In any other case, the person commits is guilty of a
  246  misdemeanor of the second degree, punishable as provided in s.
  247  775.082 or s. 775.083.
  248         (3) Subsection (1) does not apply with respect to conduct
  249  authorized:
  250         (a) By the person or entity providing a wire, oral, or
  251  electronic communications service, including through cellular
  252  phones, portable electronic communication devices, or
  253  microphone-enabled household devices;
  254         (b) By a user of a wire, oral, or electronic communications
  255  service, including through cellular phones, portable electronic
  256  communication devices, or microphone-enabled household devices,
  257  with respect to a communication of or intended for that user; or
  258         (c) In s. 934.09 or, s. 934.23;, or s. 934.24
  259         (d) In chapter 933; or
  260         (e) For accessing for a legitimate business purpose
  261  information that is not personally identifiable or that has been
  262  collected in a way that prevents identification of the user of
  263  the device.
  264         Section 4. Section 934.23, Florida Statutes, is amended to
  265  read:
  266         934.23 Required disclosure of customer communications or
  267  records.—
  268         (1)As used in this section, the term:
  269         (a)“A court of competent jurisdiction” means a court that
  270  has jurisdiction over the investigation or that is otherwise
  271  authorized by law.
  272         (b)“Investigative or law enforcement officer” has the same
  273  meaning as s. 934.02(6), except that in any criminal
  274  investigation, if a law enforcement agency seeks disclosure of
  275  information obtainable by a subpoena under this section, the
  276  agency must request that a state attorney, an assistant state
  277  attorney, the statewide prosecutor, or an assistant statewide
  278  prosecutor obtain such subpoena.
  279         (2)(1) An investigative or law enforcement officer may
  280  require the disclosure by a provider of electronic communication
  281  service or remote computing service of the contents of a wire or
  282  electronic communication that is has been in electronic storage
  283  in an electronic communications system or remote computing
  284  system for 180 days or less only pursuant to a warrant issued by
  285  the judge of a court of competent jurisdiction. As used in this
  286  section, the term “a court of competent jurisdiction” means a
  287  court that has jurisdiction over the investigation or that is
  288  otherwise authorized by law. An investigative or law enforcement
  289  officer may require the disclosure by a provider of electronic
  290  communication services of the contents of a wire or electronic
  291  communication that has been in electronic storage in an
  292  electronic communications system for more than 180 days by the
  293  means available under subsection (2).
  294         (2) An investigative or law enforcement officer may require
  295  a provider of remote computing service to disclose the contents
  296  of any wire or electronic communication to which this subsection
  297  is made applicable by subsection (3):
  298         (a) Without required notice to the subscriber or customer
  299  if the investigative or law enforcement officer obtains a
  300  warrant issued by the judge of a court of competent
  301  jurisdiction; or
  302         (b) With prior notice, or with delayed notice pursuant to
  303  s. 934.25, from the investigative or law enforcement officer to
  304  the subscriber or customer if the investigative or law
  305  enforcement officer:
  306         1. Uses a subpoena; or
  307         2. Obtains a court order for such disclosure under
  308  subsection (5).
  309         (3) Subsection (2) is applicable with respect to any
  310  electronic communication that is held or maintained on a remote
  311  computing service:
  312         (a) On behalf of a subscriber or customer of such service
  313  and received by means of electronic transmission from, or
  314  created by means of computer processing of communications
  315  received by means of electronic transmission from, a subscriber
  316  or customer of such service.
  317         (b) Solely for the purposes of providing storage or
  318  computer processing services to a subscriber or customer, if the
  319  provider is not authorized to access the contents of any such
  320  communication for purposes of providing any service other than
  321  storage or computer processing.
  322         (4)(a) An investigative or law enforcement officer may
  323  require a provider of electronic communication service or remote
  324  computing service to disclose a record or other information
  325  pertaining to a subscriber or customer of such service, not
  326  including the contents of a communication, only when the
  327  investigative or law enforcement officer:
  328         1. Obtains a warrant issued by the judge of a court of
  329  competent jurisdiction;
  330         2. Obtains a court order for such disclosure under
  331  subsection (5);
  332         3. Has the consent of the subscriber or customer to such
  333  disclosure; or
  334         4. Seeks information under paragraph (b).
  335         (b) A provider of electronic communication service or
  336  remote computing service shall disclose to an investigative or
  337  law enforcement officer the name; address; local and long
  338  distance telephone connection records, or records of session
  339  times or durations; length of service, including the starting
  340  date of service; types of services used; telephone or instrument
  341  number or other subscriber number or identity, including any
  342  temporarily assigned network address; and means and source of
  343  payment, including any credit card or bank account number of a
  344  subscriber to or customer of such service when the governmental
  345  entity uses a subpoena or obtains such information in the manner
  346  specified in paragraph (a) for obtaining information under that
  347  paragraph.
  348         (c) An investigative or law enforcement officer who
  349  receives records or information under this subsection is not
  350  required to provide notice to a subscriber or customer.
  351         (5) A court order for disclosure under subsection (2),
  352  subsection (3), or subsection (4) shall issue only if the
  353  investigative or law enforcement officer offers specific and
  354  articulable facts showing that there are reasonable grounds to
  355  believe that a record or other information pertaining to a
  356  subscriber or customer of an electronic communication service or
  357  remote computing service the contents of a wire or electronic
  358  communication or the records of other information sought are
  359  relevant and material to an ongoing criminal investigation. A
  360  court issuing an order pursuant to this section, on a motion
  361  made promptly by the service provider, may quash or modify such
  362  order if the information or records requested are unusually
  363  voluminous in nature or compliance with such order otherwise
  364  would cause an undue burden on such provider.
  365         (6) No cause of action shall lie in any court against any
  366  provider of wire or electronic communication service, its
  367  officers, employees, agents, or other specified persons for
  368  providing information, facilities, or assistance in accordance
  369  with the terms of a court order, warrant, subpoena, or
  370  certification under ss. 934.21-934.28.
  371         (7)(a) A provider of wire or electronic communication
  372  services or a remote computing service, upon the request of an
  373  investigative or law enforcement officer, shall take all
  374  necessary steps to preserve records and other evidence in its
  375  possession pending the issuance of a court order or other
  376  process.
  377         (b) Records referred to in paragraph (a) shall be retained
  378  for a period of 90 days, which shall be extended for an
  379  additional 90 days upon a renewed request by an investigative or
  380  law enforcement officer.
  381         (8) A provider of electronic communication service, a
  382  remote computing service, or any other person who furnished
  383  assistance pursuant to this section shall be held harmless from
  384  any claim and civil liability resulting from the disclosure of
  385  information pursuant to this section and shall be reasonably
  386  compensated for reasonable expenses incurred in providing such
  387  assistance.
  388         Section 5. Section 934.24, Florida Statutes is repealed.
  389         Section 6. Section 934.25, Florida Statutes, is amended to
  390  read:
  391         934.25 Nondisclosure by service provider Delayed notice.—
  392         (1) An investigative or law enforcement officer acting
  393  under s. 934.23(2) may:
  394         (a) Where a court order is sought, include in the
  395  application a request for an order delaying the notification
  396  required under s. 934.23(2) for a period not to exceed 90 days,
  397  which request the court shall grant if it determines that there
  398  is reason to believe that notification of the existence of the
  399  court order may have an adverse result described in subsection
  400  (2).
  401         (b) Where a subpoena is obtained, delay the notification
  402  required under s. 934.23(2) for a period not to exceed 90 days
  403  upon the execution of a written certification of a supervisory
  404  official that there is reason to believe that notification of
  405  the existence of the subpoena may have an adverse result
  406  described in subsection (2).
  407         (2) Any of the following acts constitute an adverse result
  408  for purposes of subsection (1):
  409         (a) Endangering the life or physical safety of an
  410  individual.
  411         (b) Fleeing from prosecution.
  412         (c) Destroying or tampering with evidence.
  413         (d) Intimidating potential witnesses.
  414         (e) Seriously jeopardizing an investigation or unduly
  415  delaying a trial.
  416         (3) The investigative or law enforcement officer shall
  417  maintain a true copy of a certification obtained under paragraph
  418  (1)(b).
  419         (4) Extensions of the delay of notification provided in s.
  420  934.23(2) of up to 90 days each may be granted by the court upon
  421  application, or by certification by an investigative or law
  422  enforcement officer, but only in accordance with subsection (6).
  423         (5) Upon the expiration of the period of delay of
  424  notification under subsection (1) or subsection (4), the
  425  investigative or law enforcement officer must serve upon or
  426  deliver by registered or first-class mail to the subscriber or
  427  customer a copy of the process or request together with notice
  428  which:
  429         (a) States with reasonable specificity the nature of the
  430  law enforcement inquiry, and
  431         (b) Informs the subscriber or customer:
  432         1. That information maintained for such subscriber or
  433  customer by the service provider named in the process or request
  434  was supplied to or requested by the investigative or law
  435  enforcement officer and the date on which such information was
  436  so supplied or requested.
  437         2. That notification of such subscriber or customer was
  438  delayed.
  439         3. What investigative or law enforcement officer or what
  440  court made the certification or determination pursuant to which
  441  that delay was made.
  442         4. Which provision of ss. 934.21-934.28 allowed such delay.
  443         (1)(6) An investigative or law enforcement officer acting
  444  under s. 934.23, when not required to notify the subscriber or
  445  customer under s. 934.23(2)(a), or to the extent that such
  446  notice may be delayed pursuant to subsection (1), may apply to a
  447  court for an order commanding a provider of electronic
  448  communication service or remote computing service to whom a
  449  warrant, subpoena, or court order is directed, for such period
  450  as the court deems appropriate, not to notify any other person
  451  of the existence of such warrant, subpoena, or court order. The
  452  court shall enter such order if it determines that there is
  453  reason to believe that notification of the existence of the
  454  warrant, subpoena, or court order will result in an adverse
  455  result.
  456         (2)For purposes of this section, an “adverse result” means
  457  any of the following acts:
  458         (a) Endangering the life or physical safety of an
  459  individual.
  460         (b) Fleeing from prosecution.
  461         (c) Destroying or tampering with evidence.
  462         (d) Intimidating potential witnesses.
  463         (e) Seriously jeopardizing an investigation or unduly
  464  delaying a trial.
  465         (7) As used in paragraph (1)(b), the term “supervisory
  466  official” means the person in charge of an investigating or law
  467  enforcement agency’s or entity’s headquarters or regional
  468  office; the state attorney of the circuit from which the subject
  469  subpoena has been issued; the statewide prosecutor; or an
  470  assistant state attorney or assistant statewide prosecutor
  471  specifically designated by the state attorney or statewide
  472  prosecutor to make such written certification.
  473         (8) As used in subsection (5), the term “deliver” shall be
  474  construed in accordance with the definition of “delivery” as
  475  provided in Rule 1.080, Florida Rules of Civil Procedure.
  476         Section 7. Section 934.255, Florida Statutes, is created to
  477  read:
  478         934.255 Subpoenas in investigations of sexual offenses.—
  479         (1) As used in this section, the term:
  480         (a) “Adverse result” means any of the following acts:
  481         1. Endangering the life or physical safety of an
  482  individual.
  483         2. Fleeing from prosecution.
  484         3. Destroying or tampering with evidence.
  485         4. Intimidating potential witnesses.
  486         5. Seriously jeopardizing an investigation or unduly
  487  delaying a trial.
  488         (b) “Child” means a person under 18 years of age.
  489         (c)“Investigative or law enforcement officer” has the same
  490  meaning as s. 934.02(6), except that in any criminal
  491  investigation, if a law enforcement agency seeks disclosure of
  492  information obtainable by a subpoena under this section, the
  493  agency must request a state attorney, an assistant state
  494  attorney, the statewide prosecutor, or an assistant statewide
  495  prosecutor obtain such subpoena.
  496         (d) “Sexual abuse of a child” means a criminal offense
  497  based on any conduct described in s. 39.01(71).
  498         (e) “Supervisory official” means the person in charge of an
  499  investigating or a law enforcement agency’s or entity’s
  500  headquarters or regional office, the state attorney of the
  501  circuit from which the subpoena has been issued, the statewide
  502  prosecutor, or an assistant state attorney or assistant
  503  statewide prosecutor specifically designated by the state
  504  attorney or statewide prosecutor.
  505         (2) An investigative or law enforcement officer who is
  506  conducting an investigation into:
  507         (a) Allegations of the sexual abuse of a child or an
  508  individual’s suspected commission of a crime listed in s.
  509  943.0435(1)(h)1.a.(I) may use a subpoena to compel the
  510  production of records, documents, or other tangible objects and
  511  the testimony of the subpoena recipient concerning the
  512  production and authenticity of such records, documents, or
  513  objects, except as provided in paragraph (b).
  514         (b) Allegations of the sexual abuse of a child may use a
  515  subpoena to require a provider of electronic communication
  516  services or remote computing services to disclose a record or
  517  other information pertaining to a subscriber or customer of such
  518  service as described in s. 934.23(4)(b).
  519         (c) A subpoena issued under paragraph (a) must describe the
  520  records, documents, or other tangible objects required to be
  521  produced, and must prescribe a date by which such records,
  522  documents, or other tangible objects must be produced.
  523         (3) At any time before the date prescribed in a subpoena
  524  issued under paragraph (2)(a) for production of records,
  525  documents, or other tangible objects or the date prescribed in a
  526  subpoena issued under paragraph (2)(b) for production of a
  527  record or other information, a person or entity receiving such
  528  subpoena may, before a judge of competent jurisdiction, petition
  529  for an order modifying or setting aside the prohibition of
  530  disclosure issued under subsection (5).
  531         (4) An investigative or law enforcement officer who uses a
  532  subpoena issued under paragraph (2)(a) to obtain any record,
  533  document, or other tangible object may retain such items for use
  534  in any ongoing criminal investigation or a closed investigation
  535  with the intent that the investigation may later be reopened.
  536         (5)(a) If a subpoena issued under subsection (2) is served
  537  upon a recipient and accompanied by a written certification of a
  538  supervisory official that there is reason to believe that
  539  notification of the existence of the subpoena may have an
  540  adverse result, the subpoena recipient is prohibited from
  541  disclosing to any person for a period of 180 days the existence
  542  of the subpoena.
  543         (b) A recipient of a subpoena issued under subsection (2)
  544  that is accompanied by a written certification issued pursuant
  545  to this subsection is authorized to disclose information
  546  otherwise subject to any applicable nondisclosure requirement to
  547  persons as is necessary to comply with the subpoena, to an
  548  attorney in order to obtain legal advice or assistance regarding
  549  compliance with the subpoena, or to any other person as allowed
  550  and specifically authorized by the investigative or law
  551  enforcement officer who obtained the subpoena or the supervisory
  552  official who issued the written certification. The subpoena
  553  recipient shall notify any person to whom disclosure of the
  554  subpoena is made pursuant to this paragraph of the existence of,
  555  and length of time associated with, the nondisclosure
  556  requirement.
  557         (c) A person to whom disclosure of the subpoena is made
  558  under paragraph (a) is subject to the nondisclosure requirements
  559  of this subsection in the same manner as the subpoena recipient.
  560         (d) At the request of the investigative or law enforcement
  561  officer who obtained the subpoena or the supervisory official
  562  who issued the written certification, the subpoena recipient
  563  shall identify to the investigative or law enforcement officer
  564  or supervisory official, before or at the time of compliance
  565  with the subpoena, the name of any person to whom disclosure was
  566  made under paragraph (b). If the investigative or law
  567  enforcement officer or supervisory official makes such a
  568  request, the subpoena recipient has an ongoing duty to disclose
  569  the identity of any individuals notified of the subpoena’s
  570  existence throughout the nondisclosure period.
  571         (e) The investigative or law enforcement officer shall
  572  maintain a true copy of a written certification obtained under
  573  this subsection.
  574         (6) An investigative or law enforcement officer acting
  575  under paragraph (2)(b) may apply to a court for an order
  576  extending the nondisclosure period provided in subsection (5)
  577  for a subpoena and commanding a provider of electronic
  578  communication service or remote computing service to whom the
  579  subpoena is directed, for such period as the court deems
  580  appropriate, not to notify any person of the existence of such
  581  subpoena. The court shall enter such order if it determines that
  582  there is reason to believe that notification of the existence of
  583  the subpoena will result in an adverse result.
  584         (7) In the case of contumacy by a person served a subpoena
  585  issued under subsection (2), or his or her refusal to comply
  586  with such a subpoena, the investigative or law enforcement
  587  officer who sought the subpoena may petition a court of
  588  competent jurisdiction to compel compliance. The court may
  589  address the matter as indirect criminal contempt pursuant to
  590  Rule 3.840, of the Florida Rules of Criminal Procedure. Any
  591  prohibited disclosure of a subpoena issued under subsection (2)
  592  for which a period of prohibition of disclosure provided in
  593  subsection (5) or an extension thereof under subsection (6) is
  594  in effect is punishable as provided in s. 934.43. However,
  595  limited disclosure is authorized as provided in subsection (5).
  596         (8) A cause of action may not lie in any court against any
  597  provider of wire or electronic communication service, its
  598  officers, employees, agents, or other specified persons for
  599  providing information, facilities, or assistance in accordance
  600  with the terms of a subpoena under this section.
  601         (9)(a) A provider of wire or electronic communication
  602  services or a remote computing service, upon the request of an
  603  investigative or law enforcement officer, shall take all
  604  necessary steps to preserve records and other evidence in its
  605  possession pending the issuance of a court order or other
  606  process.
  607         (b) Records referred to in paragraph (a) shall be retained
  608  for a period of 90 days, which shall be extended for an
  609  additional 90 days upon a renewed request by an investigative or
  610  law enforcement officer.
  611         (10) A provider of electronic communication service, a
  612  remote computing service, or any other person who furnished
  613  assistance pursuant to this section shall be held harmless from
  614  any claim and civil liability resulting from the disclosure of
  615  information pursuant to this section and shall be reasonably
  616  compensated for reasonable expenses incurred in providing such
  617  assistance. A witness who is subpoenaed to appear to testify
  618  under subsection (2) and who complies with the subpoena must be
  619  paid the same fees and mileage rate paid to a witness appearing
  620  before a court of competent jurisdiction in this state.
  621         Section 8. Section 934.42, Florida Statutes, is amended to
  622  read:
  623         934.42 Mobile tracking device and location tracking
  624  authorization.—
  625         (1) An investigative or law enforcement officer may make
  626  application to a judge of competent jurisdiction for a warrant
  627  an order authorizing or approving the installation and use of a
  628  mobile tracking device.
  629         (2) An application under subsection (1) of this section
  630  must include:
  631         (a) A statement of the identity of the applicant and the
  632  identity of the law enforcement agency conducting the
  633  investigation.
  634         (b) A statement setting forth a reasonable period of time
  635  that the tracking device may be used or the location data may be
  636  obtained in real-time, not to exceed 45 days from the date the
  637  warrant is issued. The court may, for good cause, grant one or
  638  more extensions for a reasonable period of time, not to exceed
  639  45 days each certification by the applicant that the information
  640  likely to be obtained is relevant to an ongoing criminal
  641  investigation being conducted by the investigating agency.
  642         (c) A statement of the offense to which the information
  643  likely to be obtained relates.
  644         (d) A statement as to whether it may be necessary to use
  645  and monitor the mobile tracking device outside the jurisdiction
  646  of the court from which authorization is being sought.
  647         (3) Upon application made as provided under subsection (2),
  648  the court, if it finds probable cause, that the certification
  649  and finds that the statements required by subsection (2) have
  650  been made in the application, shall grant a warrant enter an ex
  651  parte order authorizing the installation and use of a mobile
  652  tracking device. Such warrant order may authorize the use of the
  653  device within the jurisdiction of the court and outside that
  654  jurisdiction but within the State of Florida if the device is
  655  installed within the jurisdiction of the court. The warrant must
  656  command the officer to complete any installation authorized by
  657  the warrant within a specified period of time not to exceed 10
  658  calendar days.
  659         (4) A court may not require greater specificity or
  660  additional information beyond that which is required by law and
  661  this section as a requisite for issuing a warrant an order.
  662         (5)Within 10 days after the time period specified in
  663  paragraph (2)(b) has ended, the officer executing a warrant must
  664  return the warrant to the issuing judge. When the warrant is
  665  authorizing historical global positioning satellite location
  666  data, the officer executing the warrant must return the warrant
  667  to the issuing judge within 10 days after receipt of the
  668  records. The officer may do so by reliable electronic means.
  669         (6)Within 10 days after the time period specified in
  670  paragraph (2)(b) has ended, the officer executing a warrant must
  671  serve a copy of the warrant on the person who, or whose
  672  property, was tracked. Service may be accomplished by delivering
  673  a copy to the person who, or whose property, was tracked or by
  674  leaving a copy at the person’s residence or usual place of abode
  675  with an individual of suitable age and discretion who resides at
  676  that location and by mailing a copy to the person’s last known
  677  address. Upon a showing of good cause to a court of competent
  678  jurisdiction, the court may grant one or more postponements of
  679  this notice for a period of 90 days each.
  680         (7)(5) The standards established by Florida courts and the
  681  United States Supreme Court for the installation, use, or and
  682  monitoring of mobile tracking devices shall apply to the
  683  installation, use, or monitoring and use of any device as
  684  authorized by this section.
  685         (8)(6) As used in this section, the term “mobile tracking
  686  device” or a “tracking device” means an electronic or mechanical
  687  device that allows which permits the tracking of the movement of
  688  a person or object, including a cellular phone or a portable
  689  electronic communication device, and may be used to obtain real
  690  time cellular-site location data, precise global positioning
  691  satellite location data, or historical global positioning
  692  satellite location data.
  693         (9)(a)Notwithstanding any other provision of this chapter,
  694  any investigative or law enforcement officer specially
  695  designated by the Governor, the Attorney General, the statewide
  696  prosecutor, or a state attorney acting pursuant to this chapter
  697  who reasonably determines that:
  698         1.An emergency exists which:
  699         a.Involves immediate danger of death or serious physical
  700  injury to any person or the danger of escape of a prisoner; and
  701         b.Requires the installation or use of a mobile tracking
  702  device before a warrant authorizing such installation or use
  703  can, with due diligence, be obtained; and
  704         2.There are grounds upon which a warrant could be issued
  705  under this chapter to authorize such installation or use,
  706  
  707  may install or use a mobile tracking device if, within 48 hours
  708  after the installation or use has occurred or begins to occur, a
  709  warrant approving the installation or use is issued in
  710  accordance with this section.
  711         (b)In the absence of an authorizing warrant, such
  712  installation or use must immediately terminate when the
  713  information sought is obtained, when the application for the
  714  warrant is denied, or when 48 hours have lapsed since the
  715  installation or use of the mobile tracking device began,
  716  whichever is earlier.
  717         Section 9. Subsection (1) of section 934.26, Florida
  718  Statutes, is amended to read
  719         934.26 Cost reimbursement.—
  720         (1) Except as otherwise provided in subsection (3), a
  721  governmental entity which obtains the contents of
  722  communications, records, or other information under s. 934.22
  723  or, s. 934.23, or s. 934.24 shall pay to the person or entity
  724  assembling or providing such information a fee for reimbursement
  725  for such costs as are reasonably necessary and which have been
  726  directly incurred in searching for, assembling, reproducing, or
  727  otherwise providing such information. Such reimbursable costs
  728  include any costs incurred due to necessary disruption of normal
  729  operations of any electronic communication service or remote
  730  computing service in which such information may be stored.
  731         Section 10. This act shall take effect July 1, 2018.