Florida Senate - 2018 SB 618 By Senator Baxley 12-00012A-18 2018618__ 1 A bill to be entitled 2 An act relating to subpoenas in investigations of 3 sexual offenses; creating s. 934.255, F.S.; defining 4 terms; authorizing an investigative or law enforcement 5 officer conducting an investigation into specified 6 matters to subpoena certain persons or entities for 7 the production of records, documents, or other 8 tangible things and testimony; specifying requirements 9 for the issuance of a subpoena; requiring that a 10 subpoenaed witness be paid certain fees and mileage; 11 prohibiting the use of a subpoena to compel records, 12 documents, or other tangible objects protected under 13 certain circumstances; authorizing a subpoenaed person 14 to petition a court for an order modifying or setting 15 aside the subpoena or a prohibition on disclosure; 16 authorizing an investigative or law enforcement 17 officer to retain subpoenaed records, documents, or 18 other tangible objects under certain circumstances; 19 prohibiting the disclosure of a subpoena for a 20 specified period if the disclosure might result in an 21 adverse result; providing exceptions; specifying the 22 acts that constitute an adverse result; requiring the 23 investigative or law enforcement officer to maintain a 24 true copy of a written certification; authorizing a 25 court to grant extension of certain periods under 26 certain circumstances; requiring an investigative or 27 law enforcement officer to serve or deliver a copy of 28 the process along with specified information upon the 29 expiration of a nondisclosure period or delay of 30 notification; authorizing an investigative or law 31 enforcement officer to apply to a court for an order 32 prohibiting certain entities from notifying the 33 existence of a subpoena under certain circumstances; 34 requiring that a subpoena be served in a specified 35 manner; authorizing an investigative or law 36 enforcement officer to petition a court to compel 37 compliance; authorizing a court to punish a person who 38 does not comply with a subpoena as indirect criminal 39 contempt; providing criminal penalties; providing an 40 effective date. 41 42 Be It Enacted by the Legislature of the State of Florida: 43 44 Section 1. Section 934.255, Florida Statutes, is created to 45 read: 46 934.255 Subpoenas in investigations of sexual offenses.— 47 (1) As used in this section, the term: 48 (a) “Child” means a person under 18 years of age. 49 (b) “Child sexual offender” means a person required to 50 register as a sexual offender under s. 943.0435 or as a sexual 51 predator under s. 775.21, and the registration was for a 52 conviction of an offense in which a child was the victim. 53 (c) “Deliver” is construed in accordance with completed 54 delivery, as provided for in Rule 1.080(b) of the Florida Rules 55 of Civil Procedure. 56 (d) “Sexual abuse of a child” means a criminal offense 57 based on any conduct described in s. 39.01(71). 58 (e) “Supervisory official” means the person in charge of an 59 investigating or law enforcement agency’s or entity’s 60 headquarters or regional office; the state attorney of the 61 circuit from which the subpoena has been issued; the statewide 62 prosecutor; or an assistant state attorney or assistant 63 statewide prosecutor specifically designated by the state 64 attorney or statewide prosecutor to make such written 65 certification. 66 (2) An investigative or law enforcement officer who is 67 conducting an investigation into: 68 (a) Allegations of the sexual abuse of a child, a child 69 sexual offender’s failure to register as required by chapter 943 70 or chapter 775, or an individual’s suspected commission of a 71 crime listed in s. 775.21(4)(a) may use a subpoena to compel the 72 production of records, documents, or other tangible objects and 73 the testimony of the subpoena recipient concerning the 74 production and authenticity of such records, documents, or 75 objects, except as provided in paragraphs (b) and (c). 76 (b) Allegations of the sexual abuse of a child may require 77 a provider of electronic communication services or remote 78 computing services to disclose a record or other information 79 pertaining to a subscriber or customer of such service, not 80 including the contents of a communication, when the 81 investigative or law enforcement officer obtains such 82 information in the manner prescribed in s. 934.23(4)(a), or 83 through the use of a subpoena that is served upon a provider of 84 electronic communication services or remote computer services, 85 compelling the provider to produce records, documents, or other 86 tangible objects and testimony concerning their production and 87 authenticity. An investigative or law enforcement officer who 88 receives records or information from a provider of electronic 89 communication services or remote computing services under this 90 paragraph is not required to provide notice to a subscriber or 91 customer of that provider. 92 (c) Allegations of the sexual abuse of a child may require, 93 through the use of a subpoena, a provider of electronic 94 communication services or remote computing services to disclose 95 a record or other information, including the contents of any 96 wire or electronic communication that has been in electronic 97 storage in an electronic communications system for more than 180 98 days and to which this subsection is made applicable by 99 paragraph (d), with prior notice, or with delayed notice 100 pursuant to subsection (8), from the investigative or law 101 enforcement officer to the subscriber or customer. 102 (d) Paragraph (c) applies to any electronic communication 103 that is held or maintained on a remote computing service: 104 1. On behalf of a subscriber or customer of such service 105 and received by means of electronic transmission from, or 106 created by means of, computer processing of communications 107 received by means of electronic transmission from, a subscriber 108 or customer of such service. 109 2. Solely for the purposes of providing storage or computer 110 processing services to a subscriber or customer, if the provider 111 is not authorized to access the contents of any such 112 communication for purposes of providing any service other than 113 storage or computer processing. 114 115 A subpoena issued under this subsection must describe the 116 records, documents, or other tangible objects required to be 117 produced, and must prescribe a date by which such records, 118 documents, or other tangible objects must be produced. A 119 subpoena issued under this subsection and in the course of an 120 investigation into a child sexual offender’s alleged failure to 121 register, as required by chapter 943 or chapter 775, may require 122 production as soon as possible, but must allow the subpoena 123 recipient a minimum of 24 hours after service of the subpoena to 124 produce the records, documents, or other tangible objects. 125 (3) A witness who is subpoenaed to appear to testify under 126 subsection (2) and who complies with the subpoena must be paid 127 the same fees and mileage rate paid to a witness appearing 128 before a court of competent jurisdiction in this state. 129 (4) A subpoena issued pursuant to subsection (2) may not 130 compel the production of any record, document, or other tangible 131 object which would otherwise be protected from production under 132 the standards applicable to a subpoena duces tecum if issued by 133 a court of competent jurisdiction. 134 (5) At any time before the date prescribed in the subpoena 135 by which records, documents, or other tangible objects must be 136 produced, a person or entity receiving a subpoena issued 137 pursuant to subsection (2) may, before a judge of competent 138 jurisdiction, petition for an order modifying or setting aside 139 the subpoena or a prohibition of disclosure issued under 140 subsections (7) or (12). 141 (6) An investigative or law enforcement officer who uses a 142 subpoena issued under subsection (2) to obtain any record, 143 document, or other tangible object may retain such items for use 144 in any ongoing criminal investigation or a closed investigation 145 with the intent that the investigation may later be reopened. 146 (7) If a subpoena issued under subsection (2) is served 147 upon a recipient and accompanied by a written certification of a 148 supervisory official that there is reason to believe that 149 notification of the existence of the subpoena may have an 150 adverse result, as described in subsection (9), the subpoena 151 recipient is prohibited from disclosing to any person for a 152 period of 180 days the existence of the subpoena. 153 (a) A recipient of a subpoena issued under subsection (2) 154 that is accompanied by a written certification issued pursuant 155 to this subsection is authorized to disclose information 156 otherwise subject to any applicable nondisclosure requirement to 157 persons as is necessary to comply with the subpoena, to an 158 attorney in order to obtain legal advice or assistance regarding 159 compliance with the subpoena, or to any other person as allowed 160 and specifically authorized by the investigative or law 161 enforcement officer who obtained the subpoena or the supervisory 162 official who issued the written certification. The subpoena 163 recipient shall notify any person to whom disclosure of the 164 subpoena is made pursuant to this paragraph of the existence of, 165 and length of time associated with, the nondisclosure 166 requirement. 167 (b) A person to whom disclosure of the subpoena is made 168 under paragraph (a) is subject to the nondisclosure requirements 169 of this subsection in the same manner as the subpoena recipient. 170 (c) At the request of the investigative or law enforcement 171 officer who obtained the subpoena or the supervisory official 172 who issued the written certification, the subpoena recipient 173 shall identify to the investigative or law enforcement officer 174 or supervisory official, before or at the time of compliance 175 with the subpoena, the name of any person to whom disclosure was 176 made under paragraph (a). If the investigative or law 177 enforcement officer or supervisory official makes such a 178 request, the subpoena recipient has an ongoing duty to disclose 179 the identity of any individuals notified of the subpoena’s 180 existence throughout the nondisclosure period. 181 (8) An investigative or law enforcement officer who obtains 182 a subpoena under subsection (2) may delay the notification 183 required under paragraph (2)(c) for a period not to exceed 180 184 days after the execution of a written certification of a 185 supervisory official unless there is reason to believe that 186 notification of the existence of the subpoena may have an 187 adverse result described in subsection (9). 188 (9) Any of the following acts by a subpoena recipient 189 constitute an adverse result: 190 (a) Endangering the life or physical safety of an 191 individual. 192 (b) Fleeing from prosecution. 193 (c) Destroying or tampering with evidence. 194 (d) Intimidating potential witnesses. 195 (e) Seriously jeopardizing an investigation or unduly 196 delaying a trial. 197 (10) The investigative or law enforcement officer shall 198 maintain a true copy of a written certification obtained under 199 subsection (7) or subsection (8). 200 (11) The court may grant an extension of the nondisclosure 201 period provided in subsection (7) or the delay of notification 202 provided in subsection (8) of up to 90 days upon application, or 203 by certification by an investigative or law enforcement officer, 204 but only in accordance with subsection (13). 205 (12) Upon the expiration of the nondisclosure period 206 provided in subsection (7) or delay of notification in 207 subsection (8), an investigative or law enforcement officer who 208 receives records or information pursuant to a subpoena issued 209 under paragraph (2)(c) must serve upon or deliver by registered 210 or first-class mail to the subscriber or customer a copy of the 211 process or request, together with notice that: 212 (a) States with reasonable specificity the nature of the 213 law enforcement inquiry; and 214 (b) Informs the subscriber or customer of all of the 215 following: 216 1. That information maintained for such subscriber or 217 customer by the service provider named in the process or request 218 was supplied to or requested by the investigative or law 219 enforcement officer and the date on which such information was 220 so supplied or requested. 221 2. That notification of such subscriber or customer was 222 delayed. 223 3. What investigative or law enforcement officer or what 224 court made the written certification or determination pursuant 225 to which that delay was made. 226 4. Which provision of ss. 934.21-934.28 allowed such a 227 delay. 228 (13) An investigative or law enforcement officer acting 229 under paragraph (2)(b), when not required to notify the 230 subscriber or customer, or to the extent that such notice may be 231 delayed pursuant to subsection (8), may apply to a court for an 232 order prohibiting a provider of electronic communication 233 services or remote computing services to whom the subpoena is 234 directed, for such period as the court deems appropriate, from 235 notifying any other person of the existence of such subpoena 236 except as specifically authorized in subsection (7). The court 237 shall enter such order if it determines that there is reason to 238 believe that notification of the existence of the warrant, 239 subpoena, or court order will result in an adverse result, as 240 specified under subsection (9). 241 (14) A subpoena issued under subsection (2) shall be served 242 in accordance with chapter 48, except that service may be made 243 on a domestic or foreign corporation or on a partnership or 244 other unincorporated association that is subject to suit under a 245 common name by delivering the subpoena to an officer, a managing 246 or general agent, or any other agent authorized by appointment 247 or by law to receive service of process. The affidavit of the 248 individual serving the subpoena entered on a true copy of the 249 subpoena is proof of service. 250 (15) In the case of contumacy by a person served a subpoena 251 issued under subsection (2), or his or her refusal to comply 252 with such a subpoena, the investigative or law enforcement 253 officer who sought the subpoena may petition a court of 254 competent jurisdiction to compel compliance. The court may 255 address the matter as indirect criminal contempt pursuant to 256 Rule 3.840 of the Florida Rules of Criminal Procedure. Any 257 prohibited disclosure of a subpoena issued under subsection (2) 258 for which a period of prohibition of disclosure provided in 259 subsection (7), a delay of notification in subsection (8), or an 260 extension thereof under subsection (11) is in effect is 261 punishable as provided in s. 934.43. 262 Section 2. This act shall take effect October 1, 2018.