SB 1136                                          First Engrossed
    1                        A bill to be entitled                      
    2         An act relating to cyberharassment; amending s.
    3         784.049, F.S.; revising legislative intent; redefining
    4         the terms “personal identifying information” and
    5         “sexually cyberharass”; requiring that a person have a
    6         reasonable expectation of privacy in an image for the
    7         publication or dissemination of the image to qualify
    8         as sexual cyberharassment; providing that certain
    9         actions do not eliminate such an expectation of
   10         privacy; providing criminal penalties; reenacting ss.
   11         901.15(16), 901.41(5), and 933.18(11), F.S., relating
   12         to lawful arrests by officers without a warrant,
   13         prearrest diversion programs, and when a warrant may
   14         be issued for the search of a private dwelling,
   15         respectively, to incorporate the amendment made to s.
   16         784.049, F.S., in references thereto; providing an
   17         effective date.
   19  Be It Enacted by the Legislature of the State of Florida:
   21         Section 1. Section 784.049, Florida Statutes, is amended to
   22  read:
   23         784.049 Sexual cyberharassment.—
   24         (1) The Legislature finds that:
   25         (a) A person depicted in a sexually explicit image taken
   26  with the person’s consent may retain has a reasonable
   27  expectation that the image will remain private despite sharing
   28  the image with another person, such as an intimate partner.
   29         (b) It is becoming a common practice for persons to publish
   30  a sexually explicit image of another to Internet websites or to
   31  disseminate such an image through electronic means without the
   32  depicted person’s consent, contrary to the depicted person’s
   33  reasonable expectation of privacy, for no legitimate purpose,
   34  with the intent of causing substantial emotional distress to the
   35  depicted person.
   36         (c) When such images are published on Internet websites,
   37  the images they are able to be viewed indefinitely by persons
   38  worldwide and are able to be easily reproduced and shared.
   39         (d) The publication or dissemination of such images through
   40  the use of on Internet websites or electronic means creates a
   41  permanent record of the depicted person’s private nudity or
   42  private sexually explicit conduct.
   43         (e) The existence of such images on Internet websites or
   44  the dissemination of such images without the consent of all
   45  parties depicted in the images causes those depicted in such
   46  images significant psychological harm.
   47         (f) Safeguarding the psychological well-being and privacy
   48  interests of persons depicted in such images is compelling.
   49         (2) As used in this section, the term:
   50         (a) “Image” includes, but is not limited to, any
   51  photograph, picture, motion picture, film, video, or
   52  representation.
   53         (b) “Personal identification information” means any
   54  information that identifies an individual, and includes, but is
   55  not limited to, any name, postal or electronic mail address,
   56  telephone number, social security number, date of birth, or any
   57  unique physical representation has the same meaning as provided
   58  in s. 817.568.
   59         (c) “Sexually cyberharass” means to publish to an Internet
   60  website or disseminate through electronic means to another
   61  person a sexually explicit image of a person that contains or
   62  conveys the personal identification information of the depicted
   63  person to an Internet website without the depicted person’s
   64  consent, contrary to the depicted person’s reasonable
   65  expectation that the image would remain private, for no
   66  legitimate purpose, with the intent of causing substantial
   67  emotional distress to the depicted person. Evidence that the
   68  depicted person sent a sexually explicit image to another person
   69  does not, on its own, remove his or her reasonable expectation
   70  of privacy for that image.
   71         (d) “Sexually explicit image” means any image depicting
   72  nudity, as defined in s. 847.001, or depicting a person engaging
   73  in sexual conduct, as defined in s. 847.001.
   74         (3)(a) Except as provided in paragraph (b), a person who
   75  willfully and maliciously sexually cyberharasses another person
   76  commits a misdemeanor of the first degree, punishable as
   77  provided in s. 775.082 or s. 775.083.
   78         (b) A person who has one prior conviction for sexual
   79  cyberharassment and who commits a second or subsequent sexual
   80  cyberharassment commits a felony of the third degree, punishable
   81  as provided in s. 775.082, s. 775.083, or s. 775.084.
   82         (4)(a) A law enforcement officer may arrest, without a
   83  warrant, any person that he or she has probable cause to believe
   84  has violated this section.
   85         (b) Upon proper affidavits being made, a search warrant may
   86  be issued to further investigate violations of this section,
   87  including warrants issued to search a private dwelling.
   88         (5) An aggrieved person may initiate a civil action against
   89  a person who violates this section to obtain all appropriate
   90  relief in order to prevent or remedy a violation of this
   91  section, including the following:
   92         (a) Injunctive relief.
   93         (b) Monetary damages to include $5,000 or actual damages
   94  incurred as a result of a violation of this section, whichever
   95  is greater.
   96         (c) Reasonable attorney fees and costs.
   97         (6) The criminal and civil penalties of this section do not
   98  apply to:
   99         (a) A provider of an interactive computer service as
  100  defined in 47 U.S.C. s. 230(f), information service as defined
  101  in 47 U.S.C. s. 153, or communications service as defined in s.
  102  202.11, that provides the transmission, storage, or caching of
  103  electronic communications or messages of others; other related
  104  telecommunications or commercial mobile radio service; or
  105  content provided by another person; or
  106         (b) A law enforcement officer, as defined in s. 943.10, or
  107  any local, state, federal, or military law enforcement agency,
  108  that publishes a sexually explicit image in connection with the
  109  performance of his or her duties as a law enforcement officer,
  110  or law enforcement agency.
  111         (7) A violation of this section is committed within this
  112  state if any conduct that is an element of the offense, or any
  113  harm to the depicted person resulting from the offense, occurs
  114  within this state.
  115         Section 2. For the purpose of incorporating the amendment
  116  made by this act to section 784.049, Florida Statutes, in a
  117  reference thereto, subsection (16) of section 901.15, Florida
  118  Statutes, is reenacted to read:
  119         901.15 When arrest by officer without warrant is lawful.—A
  120  law enforcement officer may arrest a person without a warrant
  121  when:
  122         (16) There is probable cause to believe that the person has
  123  committed a criminal act of sexual cyberharassment as described
  124  in s. 784.049.
  125         Section 3. For the purpose of incorporating the amendment
  126  made by this act to section 784.049, Florida Statutes, in a
  127  reference thereto, subsection (5) of section 901.41, Florida
  128  Statutes, is reenacted to read:
  129         901.41 Prearrest diversion programs.—
  130         (5) ELIGIBILITY.—A violent misdemeanor, a misdemeanor crime
  131  of domestic violence, as defined in s. 741.28, or a misdemeanor
  132  under s. 741.29, s. 741.31, s. 784.046, s. 784.047, s. 784.048,
  133  s. 784.0487, or s. 784.049 does not qualify for a civil citation
  134  or prearrest diversion program.
  135         Section 4. For the purpose of incorporating the amendment
  136  made by this act to section 784.049, Florida Statutes, in a
  137  reference thereto, subsection (11) of section 933.18, Florida
  138  Statutes, is reenacted to read:
  139         933.18 When warrant may be issued for search of private
  140  dwelling.—No search warrant shall issue under this chapter or
  141  under any other law of this state to search any private dwelling
  142  occupied as such unless:
  143         (11) An instrumentality or means by which sexual
  144  cyberharassment has been committed in violation of s. 784.049,
  145  or evidence relevant to proving that sexual cyberharassment has
  146  been committed in violation of s. 784.049, is contained therein.
  148  If, during a search pursuant to a warrant issued under this
  149  section, a child is discovered and appears to be in imminent
  150  danger, the law enforcement officer conducting such search may
  151  remove the child from the private dwelling and take the child
  152  into protective custody pursuant to chapter 39. The term
  153  “private dwelling” shall be construed to include the room or
  154  rooms used and occupied, not transiently but solely as a
  155  residence, in an apartment house, hotel, boardinghouse, or
  156  lodginghouse. No warrant shall be issued for the search of any
  157  private dwelling under any of the conditions hereinabove
  158  mentioned except on sworn proof by affidavit of some creditable
  159  witness that he or she has reason to believe that one of said
  160  conditions exists, which affidavit shall set forth the facts on
  161  which such reason for belief is based.
  162         Section 5. This act shall take effect July 1, 2019.