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.