Florida Senate - 2020 SB 470
By Senator Brandes
24-00120-20 2020470__
1 A bill to be entitled
2 An act relating to searches of cellular phones and
3 other electronic devices; amending s. 933.02, F.S.;
4 expanding the grounds for issuance of a search warrant
5 to include content held within a cellular phone,
6 portable electronic communication device, or
7 microphone-enabled household device when such content
8 constitutes evidence relevant to proving that a felony
9 has been committed; amending s. 933.04, F.S.; adopting
10 the constitutional protection against unreasonable
11 interception of private communications by any means
12 for purposes of obtaining a search warrant; amending
13 s. 934.01, F.S.; revising and providing legislative
14 findings; amending s. 934.02, F.S.; redefining the
15 term “oral communication”; defining the terms
16 “microphone-enabled household device” and “portable
17 electronic communication device”; amending s. 934.03,
18 F.S.; authorizing specified persons to provide
19 information, facilities, or technical assistance to a
20 person authorized by law to intercept wire, oral, or
21 electronic communications if such person has been
22 provided with a search warrant issued by a court of
23 competent jurisdiction; prohibiting specified persons
24 from disclosing the existence of any interception of a
25 wire, oral, or electronic communication with respect
26 to which the person has been served with a search
27 warrant, rather than a court order; amending s.
28 934.06, F.S.; prohibiting the use of certain
29 communication content in any trial, hearing or other
30 proceeding which was obtained without a specified
31 warrant; providing an exception; amending s. 934.07,
32 F.S.; authorizing a judge to issue a search warrant,
33 rather than grant a court order, in conformity with
34 specified provisions; authorizing the Department of
35 Law Enforcement to request a law enforcement agency
36 that provided certain information to join the
37 department in seeking a new search warrant; amending
38 s. 934.09, F.S.; requiring that each application for a
39 search warrant, rather than an order, authorizing or
40 approving the interception of wire, oral, or
41 electronic communications be made in writing and state
42 the applicant’s authority; authorizing a judge to
43 authorize a search warrant ex parte, rather than an ex
44 parte order, based on the application under certain
45 circumstances; specifying requirements for search
46 warrants, rather than orders, issued under certain
47 circumstances; authorizing an aggrieved person to move
48 to suppress the contents of certain wire, oral, or
49 electronic communications before, as well as during, a
50 trial, hearing, or proceeding; providing for
51 inadmissibility of certain evidence if a certain
52 motion is granted; authorizing a judge of competent
53 jurisdiction to authorize interception of wire, oral,
54 or electronic communications within this state under
55 specified circumstances; amending s. 934.10, F.S.;
56 providing that a good faith reliance on a search
57 warrant, rather than a court order, subpoena, or
58 legislative authorization, issued under certain
59 provisions constitutes a complete defense against
60 specified actions; amending s. 934.21, F.S.; revising
61 the exceptions to conduct that constitutes unlawful
62 access to stored communications; conforming a
63 provision to changes made by the act; amending s.
64 934.42, F.S.; defining the terms “mobile tracking
65 device,” “real-time location tracking,” and
66 “historical location data”; authorizing an
67 investigative or law enforcement officer to apply to a
68 judge of competent jurisdiction for a search warrant,
69 rather than an order, authorizing real-time location
70 tracking or acquisition of historical location data;
71 requiring an application for a search warrant to
72 include a statement setting forth a reasonable period
73 of time the mobile tracking device may be used or the
74 location data may be obtained in real time, not to
75 exceed a specified limit; authorizing a court to grant
76 extensions, for good cause, that do not individually
77 exceed a specified limit; requiring an applicant
78 seeking historical location data to specify a date
79 range for the data sought; deleting a provision
80 requiring a certification to be included in the
81 application; requiring the court, if it finds probable
82 cause and that the application contains the required
83 statements, to grant a search warrant; specifying that
84 the search warrant may authorize real-time location
85 tracking or acquisition of historical location data;
86 providing that the search warrant may authorize the
87 tracking as specified; requiring the search warrant to
88 command the investigative or law enforcement officer
89 to complete any initiation of the location tracking or
90 execution of the search warrant for historical
91 location data authorized by the search warrant within
92 a certain timeframe; providing requirements for the
93 return of the search warrant to the judge and for
94 service of a copy of the search warrant on the person
95 who was tracked or whose property was tracked;
96 providing requirements for returning and serving a
97 search warrant authorizing the acquisition of
98 historical location data; authorizing a court, for
99 good cause, to postpone the notice requirement for a
100 specified time period; requiring that the standards
101 established by Florida courts for the installation,
102 use, or monitoring of mobile tracking devices and the
103 acquisition of location data apply to the
104 installation, use, or monitoring of any devices and
105 the acquisition of location data as authorized by
106 certain provisions; deleting the definition of
107 “tracking device”; authorizing any investigative or
108 law enforcement officer who is specially designated by
109 certain persons and who makes specified determinations
110 to engage in real-time location tracking if a search
111 warrant is obtained, as specified, after the tracking
112 has occurred or begins to occur; providing
113 requirements for engaging in real-time location
114 tracking; specifying when real-time location tracking
115 must terminate; reenacting s. 934.22(2)(b), F.S.,
116 relating to voluntary disclosure of customer
117 communications or records, to incorporate the
118 amendments made to ss. 934.03 and 934.07, F.S., in
119 references thereto; reenacting s. 934.27(1) and (4),
120 F.S., relating to relief, damages, and defenses for
121 certain civil actions, to incorporate the amendments
122 made to ss. 934.09 and 934.21, F.S., in references
123 thereto; reenacting ss. 934.23(6), 934.24(6) and (7),
124 934.25(5), and 934.28, F.S., relating to required
125 disclosures of customer communications or records, a
126 subscriber or customer filing a motion for certain
127 relief and customer notification, delayed notice, and
128 the exclusivity of remedies and sanctions for certain
129 violations, respectively, to incorporate the amendment
130 made to s. 934.21, F.S., in references thereto;
131 providing an effective date.
132
133 Be It Enacted by the Legislature of the State of Florida:
134
135 Section 1. Section 933.02, Florida Statutes, is amended to
136 read:
137 933.02 Grounds for issuance of search warrant.—Upon proper
138 affidavits being made, a search warrant may be issued under the
139 provisions of this chapter upon any of the following grounds:
140 (1) When the property shall have been stolen or embezzled
141 in violation of law.;
142 (2) When any property shall have been used:
143 (a) As a means to commit any crime;
144 (b) In connection with gambling, gambling implements and
145 appliances; or
146 (c) In violation of s. 847.011 or other laws in reference
147 to obscene prints and literature.;
148 (3) When any property, or when content held within a
149 cellular phone, a portable electronic communication device as
150 defined in s. 934.02, or a microphone-enabled household device
151 as defined in s. 934.02, constitutes evidence relevant to
152 proving that a felony has been committed.;
153 (4) When any property is being held or possessed:
154 (a) In violation of any of the laws prohibiting the
155 manufacture, sale, and transportation of intoxicating liquors;
156 (b) In violation of the fish and game laws;
157 (c) In violation of the laws relative to food and drug; or
158 (d) In violation of the laws relative to citrus disease
159 pursuant to s. 581.184.; or
160 (5) When the laws in relation to cruelty to animals, as
161 provided in chapter 828, have been or are violated in any
162 particular building or place.
163
164 This section also applies to any papers or documents used as a
165 means of or in aid of the commission of any offense against the
166 laws of the state.
167 Section 2. Section 933.04, Florida Statutes, is amended to
168 read:
169 933.04 Affidavits.—The right of the people to be secure in
170 their persons, houses, papers and effects against unreasonable
171 seizures and searches and against the unreasonable interception
172 of private communications by any means shall not be violated and
173 no search warrant shall be issued except upon probable cause,
174 supported by oath or affirmation particularly describing the
175 place to be searched and the person and thing to be seized.
176 Section 3. Section 934.01, Florida Statutes, is amended to
177 read:
178 934.01 Legislative findings.—On the basis of its own
179 investigations and of published studies, the Legislature makes
180 the following findings:
181 (1) Wire communications are normally conducted through the
182 use of facilities which form part of an intrastate network. The
183 same facilities are used for interstate and intrastate
184 communications.
185 (2) In order to protect effectively the privacy of wire,
186 and oral, and electronic communications, to protect the
187 integrity of court and administrative proceedings, and to
188 prevent the obstruction of intrastate commerce, it is necessary
189 for the Legislature to define the circumstances and conditions
190 under which the interception of wire, and oral, and electronic
191 communications may be authorized and to prohibit any
192 unauthorized interception of such communications and the use of
193 the contents thereof in evidence in courts and administrative
194 proceedings.
195 (3) Organized criminals make extensive use of wire, and
196 oral, and electronic communications in their criminal
197 activities. The interception of such communications to obtain
198 evidence of the commission of crimes or to prevent their
199 commission is an indispensable aid to law enforcement and the
200 administration of justice.
201 (4) To safeguard the privacy of innocent persons, the
202 interception of wire, or oral, or electronic communications when
203 none of the parties to the communication has consented to the
204 interception should be allowed only when authorized by a court
205 of competent jurisdiction and should remain under the control
206 and supervision of the authorizing court. Interception of wire,
207 and oral, and electronic communications should further be
208 limited to certain major types of offenses and specific
209 categories of crime with assurance that the interception is
210 justified and that the information obtained thereby will not be
211 misused.
212 (5) To safeguard the privacy of innocent persons, the
213 Legislature recognizes the subjective expectation of privacy in
214 real-time cell-site location data, real-time precise global
215 positioning system location data, and historical precise global
216 positioning system location data which society is now prepared
217 to accept is objectively reasonable. As such, the law
218 enforcement collection of the precise location of a person,
219 cellular phone, or portable electronic communication device
220 without the consent of the person or owner of the cellular phone
221 or portable electronic communication device should be allowed
222 only when authorized by a search warrant issued by a court of
223 competent jurisdiction and should remain under the control and
224 supervision of the authorizing court.
225 (6) The Legislature recognizes the use of portable
226 electronic communication devices is growing at a rapidly
227 increasing rate. These devices can store, and encourage the
228 storing of, an almost limitless amount of personal and private
229 information. Often linked to the Internet, these devices are
230 commonly used to access personal and business information and
231 databases in computers and servers that can be located anywhere
232 in the world. The user of a portable electronic communication
233 device has a reasonable and justifiable expectation of privacy
234 in the information that these devices contain.
235 (7) The Legislature recognizes the use of household
236 electronic devices, including microphone-enabled household
237 devices, is growing rapidly. These devices often contain
238 microphones that listen for and respond to environmental cues.
239 These household devices are generally connected to and
240 communicate through the Internet, resulting in the storage of
241 and accessibility to daily household information in the device
242 itself or in a remote computing service. Persons should not have
243 to choose between using household technological enhancements and
244 conveniences or preserving the right to privacy in their own
245 homes.
246 Section 4. Subsection (2) of section 934.02, Florida
247 Statutes, is amended, and subsections (27) and (28) are added to
248 that section, to read:
249 934.02 Definitions.—As used in this chapter:
250 (2) “Oral communication” means any oral communication
251 uttered by a person exhibiting an expectation that such
252 communication is not subject to interception under circumstances
253 justifying such expectation, including the use of a microphone
254 enabled household device, and does not mean any public oral
255 communication uttered at a public meeting or any electronic
256 communication.
257 (27) “Microphone-enabled household device” means a device,
258 sensor, or other physical object within a residence which:
259 (a) Is capable of connecting to the Internet, directly or
260 indirectly, or to another connected device;
261 (b) Is capable of creating, receiving, accessing,
262 processing, or storing electronic data or communications;
263 (c) Communicates with, by any means, another entity or
264 individual; and
265 (d) Contains a microphone designed to listen for and
266 respond to environmental cues.
267 (28) “Portable electronic communication device” means an
268 object that may be easily transported or conveyed by a person;
269 is capable of creating, receiving, accessing, processing, or
270 storing electronic data or communications; and communicates
271 with, by any means, another device, entity, or individual.
272 Section 5. Subsection (2) of section 934.03, Florida
273 Statutes, is amended to read:
274 934.03 Interception and disclosure of wire, oral, or
275 electronic communications prohibited.—
276 (2)(a)1. It is lawful under this section and ss. 934.04
277 934.09 for an operator of a switchboard, or an officer,
278 employee, or agent of a provider of wire or electronic
279 communication service whose facilities are used in the
280 transmission of a wire or electronic communication, to
281 intercept, disclose, or use that communication in the normal
282 course of his or her employment while engaged in any activity
283 which is a necessary incident to the rendition of his or her
284 service or to the protection of the rights or property of the
285 provider of that service, except that a provider of wire
286 communication service to the public shall not utilize service
287 observing or random monitoring except for mechanical or service
288 quality control checks.
289 2. Notwithstanding any other law, a provider of wire, oral,
290 or electronic communication service, or an officer, employee, or
291 agent thereof, or landlord, custodian, or other person, may
292 provide information, facilities, or technical assistance to a
293 person authorized by law to intercept wire, oral, or electronic
294 communications if such provider, or an officer, employee, or
295 agent thereof, or landlord, custodian, or other person, has been
296 provided with:
297 a. A court order directing such assistance signed by the
298 authorizing judge; or
299 b. A certification in writing by a person specified in s.
300 934.09(7) that no search warrant or court order is required by
301 law, that all statutory requirements have been met, and that the
302 specified assistance is required, setting forth the period of
303 time during which the provision of the information, facilities,
304 or technical assistance is authorized and specifying the
305 information, facilities, or technical assistance required; or
306 b. A search warrant issued by a judge of competent
307 jurisdiction as required by law.
308 3. A provider of wire, oral, or electronic communication
309 service, or an officer, employee, or agent thereof, or landlord,
310 custodian, or other person may not disclose the existence of any
311 interception or the device used to accomplish the interception
312 with respect to which the person has been served with a search
313 warrant furnished an order under this section and ss. 934.04
314 934.09, except as may otherwise be required by legal process and
315 then only after prior notice to the Governor, the Attorney
316 General, the statewide prosecutor, or a state attorney, as may
317 be appropriate. Any such disclosure renders such person liable
318 for the civil damages provided under s. 934.10, and such person
319 may be prosecuted under s. 934.43. An action may not be brought
320 against any provider of wire, oral, or electronic communication
321 service, or an officer, employee, or agent thereof, or landlord,
322 custodian, or other person for providing information,
323 facilities, or assistance in accordance with the terms of a
324 search warrant court order under this section and ss. 934.04
325 934.09.
326 (b) It is lawful under this section and ss. 934.04-934.09
327 for an officer, employee, or agent of the Federal Communications
328 Commission, in the normal course of his or her employment and in
329 discharge of the monitoring responsibilities exercised by the
330 commission in the enforcement of 47 U.S.C. chapter 5, to
331 intercept a wire, oral, or electronic communication transmitted
332 by radio or to disclose or use the information thereby obtained.
333 (c) It is lawful under this section and ss. 934.04-934.09
334 for an investigative or law enforcement officer or a person
335 acting under the direction of an investigative or law
336 enforcement officer to intercept a wire, oral, or electronic
337 communication when such person is a party to the communication
338 or one of the parties to the communication has given prior
339 consent to such interception and the purpose of such
340 interception is to obtain evidence of a criminal act.
341 (d) It is lawful under this section and ss. 934.04-934.09
342 for a person to intercept a wire, oral, or electronic
343 communication when all of the parties to the communication have
344 given prior consent to such interception.
345 (e) It is unlawful to intercept any wire, oral, or
346 electronic communication for the purpose of committing any
347 criminal act.
348 (f) It is lawful under this section and ss. 934.04-934.09
349 for an employee of a telephone company to intercept a wire
350 communication for the sole purpose of tracing the origin of such
351 communication when the interception is requested by the
352 recipient of the communication and the recipient alleges that
353 the communication is obscene, harassing, or threatening in
354 nature. The individual conducting the interception shall notify
355 local police authorities within 48 hours after the time of the
356 interception.
357 (g) It is lawful under this section and ss. 934.04-934.09
358 for an employee of:
359 1. An ambulance service licensed pursuant to s. 401.25, a
360 fire station employing firefighters as defined by s. 633.102, a
361 public utility, a law enforcement agency as defined by s.
362 934.02(10), or any other entity with published emergency
363 telephone numbers;
364 2. An agency operating an emergency telephone number “911”
365 system established pursuant to s. 365.171; or
366 3. The central abuse hotline operated pursuant to s. 39.201
367
368 to intercept and record incoming wire communications; however,
369 such employee may intercept and record incoming wire
370 communications on designated “911” telephone numbers and
371 published nonemergency telephone numbers staffed by trained
372 dispatchers at public safety answering points only. It is also
373 lawful for such employee to intercept and record outgoing wire
374 communications to the numbers from which such incoming wire
375 communications were placed when necessary to obtain information
376 required to provide the emergency services being requested. For
377 the purpose of this paragraph, the term “public utility” has the
378 same meaning as provided in s. 366.02 and includes a person,
379 partnership, association, or corporation now or hereafter owning
380 or operating equipment or facilities in the state for conveying
381 or transmitting messages or communications by telephone or
382 telegraph to the public for compensation.
383 (h) It shall not be unlawful under this section and ss.
384 934.04-934.09 for any person:
385 1. To intercept or access an electronic communication made
386 through an electronic communication system that is configured so
387 that such electronic communication is readily accessible to the
388 general public.
389 2. To intercept any radio communication which is
390 transmitted:
391 a. By any station for the use of the general public, or
392 that relates to ships, aircraft, vehicles, or persons in
393 distress;
394 b. By any governmental, law enforcement, civil defense,
395 private land mobile, or public safety communications system,
396 including any police or fire communications system, readily
397 accessible to the general public;
398 c. By a station operating on an authorized frequency within
399 the bands allocated to the amateur, citizens band, or general
400 mobile radio services; or
401 d. By any marine or aeronautical communications system.
402 3. To engage in any conduct which:
403 a. Is prohibited by s. 633 of the Communications Act of
404 1934; or
405 b. Is excepted from the application of s. 705(a) of the
406 Communications Act of 1934 by s. 705(b) of that act.
407 4. To intercept any wire or electronic communication the
408 transmission of which is causing harmful interference to any
409 lawfully operating station of consumer electronic equipment to
410 the extent necessary to identify the source of such
411 interference.
412 5. To intercept, if such person is another user of the same
413 frequency, any radio communication that is not scrambled or
414 encrypted made through a system that utilizes frequencies
415 monitored by individuals engaged in the provision or the use of
416 such system.
417 6. To intercept a satellite transmission that is not
418 scrambled or encrypted and that is transmitted:
419 a. To a broadcasting station for purposes of retransmission
420 to the general public; or
421 b. As an audio subcarrier intended for redistribution to
422 facilities open to the public, but not including data
423 transmissions or telephone calls, when such interception is not
424 for the purposes of direct or indirect commercial advantage or
425 private financial gain.
426 7. To intercept and privately view a private satellite
427 video communication that is not scrambled or encrypted or to
428 intercept a radio communication that is transmitted on
429 frequencies allocated under subpart D of part 74 of the rules of
430 the Federal Communications Commission that is not scrambled or
431 encrypted, if such interception is not for a tortious or illegal
432 purpose or for purposes of direct or indirect commercial
433 advantage or private commercial gain.
434 (i) It shall not be unlawful under this section and ss.
435 934.04-934.09:
436 1. To use a pen register or a trap and trace device as
437 authorized under ss. 934.31-934.34 or under federal law; or
438 2. For a provider of electronic communication service to
439 record the fact that a wire or electronic communication was
440 initiated or completed in order to protect such provider,
441 another provider furnishing service toward the completion of the
442 wire or electronic communication, or a user of that service,
443 from fraudulent, unlawful, or abusive use of such service.
444 (j) It is not unlawful under this section and ss. 934.04
445 934.09 for a person acting under color of law to intercept the
446 wire or electronic communications of a computer trespasser which
447 are transmitted to, through, or from a protected computer if:
448 1. The owner or operator of the protected computer
449 authorizes the interception of the communications of the
450 computer trespasser;
451 2. The person acting under color of law is lawfully engaged
452 in an investigation;
453 3. The person acting under color of law has reasonable
454 grounds to believe that the contents of the communications of
455 the computer trespasser will be relevant to the investigation;
456 and
457 4. The interception does not acquire communications other
458 than those transmitted to, through, or from the computer
459 trespasser.
460 (k) It is lawful under this section and ss. 934.04-934.09
461 for a child under 18 years of age to intercept and record an
462 oral communication if the child is a party to the communication
463 and has reasonable grounds to believe that recording the
464 communication will capture a statement by another party to the
465 communication that the other party intends to commit, is
466 committing, or has committed an unlawful sexual act or an
467 unlawful act of physical force or violence against the child.
468 Section 6. Section 934.06, Florida Statutes, is amended to
469 read:
470 934.06 Prohibition of use as evidence of intercepted wire
471 or oral communications; content of cellular phone, microphone
472 enabled household device, or portable electronic communication
473 device; exceptions exception.—Whenever any wire or oral
474 communication has been intercepted, or when the content of a
475 cellular phone, microphone-enabled household device, or portable
476 electronic communication device is obtained without a search
477 warrant supported by probable cause, no part of the contents of
478 such communication or content and no evidence derived therefrom
479 may be received in evidence in any trial, hearing, or other
480 proceeding in or before any court, grand jury, department,
481 officer, agency, regulatory body, legislative committee, or
482 other authority of the state, or a political subdivision
483 thereof, if the disclosure of that information would be in
484 violation of this chapter. The prohibition of use as evidence
485 provided in this section does not apply in cases of prosecution
486 for criminal interception in violation of the provisions of this
487 chapter, or in cases where the content of a cellular phone,
488 microphone-enabled household device, or portable electronic
489 communication device is lawfully obtained under circumstances
490 where a search warrant is not required.
491 Section 7. Subsections (1) and (2) of section 934.07,
492 Florida Statutes, are amended to read:
493 934.07 Authorization for interception of wire, oral, or
494 electronic communications.—
495 (1) The Governor, the Attorney General, the statewide
496 prosecutor, or any state attorney may authorize an application
497 to a judge of competent jurisdiction for, and such judge may
498 issue a search warrant as required by law grant in conformity
499 with ss. 934.03-934.09 an order authorizing or approving the
500 interception of, wire, oral, or electronic communications by:
501 (a) The Department of Law Enforcement or any law
502 enforcement agency as defined in s. 934.02 having responsibility
503 for the investigation of the offense as to which the application
504 is made when such interception may provide or has provided
505 evidence of the commission of the offense of murder, kidnapping,
506 aircraft piracy, arson, gambling, robbery, burglary, theft,
507 dealing in stolen property, criminal usury, bribery, or
508 extortion; any felony violation of ss. 790.161-790.166,
509 inclusive; any violation of s. 787.06; any violation of chapter
510 893; any violation of the provisions of the Florida Anti-Fencing
511 Act; any violation of chapter 895; any violation of chapter 896;
512 any violation of chapter 815; any violation of chapter 847; any
513 violation of s. 827.071; any violation of s. 944.40; or any
514 conspiracy or solicitation to commit any violation of the laws
515 of this state relating to the crimes specifically enumerated in
516 this paragraph.
517 (b) The Department of Law Enforcement, together with other
518 assisting personnel as authorized and requested by the
519 department under s. 934.09(5), for the investigation of the
520 offense as to which the application is made when such
521 interception may provide or has provided evidence of the
522 commission of any offense that may be an act of terrorism or in
523 furtherance of an act of terrorism or evidence of any conspiracy
524 or solicitation to commit any such violation.
525 (2)(a) If, during the course of an interception of
526 communications by a law enforcement agency as authorized under
527 paragraph (1)(a), the law enforcement agency finds that the
528 intercepted communications may provide or have provided evidence
529 of the commission of any offense that may be an act of terrorism
530 or in furtherance of an act of terrorism, or evidence of any
531 conspiracy or solicitation to commit any such violation, the law
532 enforcement agency shall promptly notify the Department of Law
533 Enforcement and apprise the department of the contents of the
534 intercepted communications. The agency notifying the department
535 may continue its previously authorized interception with
536 appropriate minimization, as applicable, and may otherwise
537 assist the department as provided in this section.
538 (b) Upon its receipt of information of the contents of an
539 intercepted communications from a law enforcement agency, the
540 Department of Law Enforcement shall promptly review the
541 information to determine whether the information relates to an
542 actual or anticipated act of terrorism as defined in this
543 section. If, after reviewing the contents of the intercepted
544 communications, there is probable cause that the contents of the
545 intercepted communications meet the criteria of paragraph
546 (1)(b), the Department of Law Enforcement may make application
547 for the interception of wire, oral, or electronic communications
548 consistent with paragraph (1)(b). The department may make an
549 independent new application for interception based on the
550 contents of the intercepted communications. Alternatively, the
551 department may request the law enforcement agency that provided
552 the information to join with the department in seeking a new
553 search warrant as required by law or an amendment of the
554 original interception search warrant order, or may seek
555 additional authority to continue intercepting communications
556 under the direction of the department. In carrying out its
557 duties under this section, the department may use the provisions
558 for an emergency interception provided in s. 934.09(7) if
559 applicable under statutory criteria.
560 Section 8. Section 934.09, Florida Statutes, is amended to
561 read:
562 934.09 Procedure for interception of wire, oral, or
563 electronic communications.—
564 (1) Each application for a search warrant an order
565 authorizing or approving the interception of a wire, oral, or
566 electronic communication under ss. 934.03-934.09 shall be made
567 in writing upon oath or affirmation to a judge of competent
568 jurisdiction and shall state the applicant’s authority to make
569 such application. Each application shall include the following
570 information:
571 (a) The identity of the investigative or law enforcement
572 officer making the application and the officer authorizing the
573 application.
574 (b) A full and complete statement of the facts and
575 circumstances relied upon by the applicant to justify his or her
576 belief that a search warrant an order should be issued,
577 including:
578 1. Details as to the particular offense that has been, is
579 being, or is about to be committed.
580 2. Except as provided in subsection (11), a particular
581 description of the nature and location of the facilities from
582 which, or the place where, the communications are to be
583 intercepted.
584 3. A particular description of the type of communications
585 sought to be intercepted.
586 4. The identity of the person, if known, committing the
587 offense and whose communications are to be intercepted.
588 (c) A full and complete statement as to whether or not
589 other investigative procedures have been tried and failed or why
590 they reasonably appear to be unlikely to succeed if tried or to
591 be too dangerous.
592 (d) A statement of the period of time for which the
593 interception is required to be maintained and, if the nature of
594 the investigation is such that the authorization for
595 interception should not automatically terminate when the
596 described type of communication has been first obtained, a
597 particular description of facts establishing probable cause to
598 believe that additional communications of the same type will
599 occur thereafter.
600 (e) A full and complete statement of the facts concerning
601 all previous applications known to the individual authorizing
602 and making the application, made to any judge for authorization
603 to intercept, or for approval of interceptions of, wire, oral,
604 or electronic communications involving any of the same persons,
605 facilities, or places specified in the application, and the
606 action taken by the judge on each such application.
607 (f) When the application is for the extension of a search
608 warrant an order, a statement setting forth the results thus far
609 obtained from the interception or a reasonable explanation of
610 the failure to obtain such results.
611 (2) The judge may require the applicant to furnish
612 additional testimony or documentary evidence in support of the
613 application.
614 (3) Upon such application, the judge may authorize a search
615 warrant enter an ex parte order, as requested or as modified,
616 authorizing or approving interception of wire, oral, or
617 electronic communications within the territorial jurisdiction of
618 the court in which the judge is sitting, and outside such
619 jurisdiction but within the State of Florida in the case of a
620 mobile interception device authorized by the judge within such
621 jurisdiction, if the judge determines on the basis of the facts
622 submitted by the applicant that:
623 (a) There is probable cause for belief that an individual
624 is committing, has committed, or is about to commit an offense
625 as provided in s. 934.07.
626 (b) There is probable cause for belief that particular
627 communications concerning that offense will be obtained through
628 such interception.
629 (c) Normal investigative procedures have been tried and
630 have failed or reasonably appear to be unlikely to succeed if
631 tried or to be too dangerous.
632 (d) Except as provided in subsection (11), there is
633 probable cause for belief that the facilities from which, or the
634 place where, the wire, oral, or electronic communications are to
635 be intercepted are being used, or are about to be used, in
636 connection with the commission of such offense, or are leased
637 to, listed in the name of, or commonly used by such person.
638 (4) Each search warrant order authorizing or approving the
639 interception of any wire, oral, or electronic communication
640 shall specify:
641 (a) The identity of the person, if known, whose
642 communications are to be intercepted.
643 (b) The nature and location of the communications
644 facilities as to which, or the place where, authority to
645 intercept is granted.
646 (c) A particular description of the type of communication
647 sought to be intercepted and a statement of the particular
648 offense to which it relates.
649 (d) The identity of the agency authorized to intercept the
650 communications and of the person authorizing the application.
651 (e) The period of time during which such interception is
652 authorized, including a statement as to whether or not the
653 interception shall automatically terminate when the described
654 communication has been first obtained.
655
656 A search warrant An order authorizing the interception of a
657 wire, oral, or electronic communication shall, upon the request
658 of the applicant, direct that a provider of wire or electronic
659 communication service, landlord, custodian, or other person
660 shall furnish the applicant forthwith all information,
661 facilities, and technical assistance necessary to accomplish the
662 interception unobtrusively and with a minimum of interference
663 with the services that such service provider, landlord,
664 custodian, or person is according the person whose
665 communications are to be intercepted. The obligation of a
666 provider of wire, oral, or electronic communication service
667 under such a search warrant an order may include, but is not
668 limited to, conducting an in-progress trace during an
669 interception, or providing other assistance to support the
670 investigation as may be specified in the search warrant order.
671 Any provider of wire or electronic communication service,
672 landlord, custodian, or other person furnishing such facilities
673 or technical assistance shall be compensated therefor by the
674 applicant for reasonable expenses incurred in providing such
675 facilities or assistance.
676 (5) No search warrant order entered under this section may
677 authorize or approve the interception of any wire, oral, or
678 electronic communication for any period longer than is necessary
679 to achieve the objective of the authorization or in any event
680 longer than 30 days. Such 30-day period begins on the day on
681 which the agent or officer of the law enforcement agency first
682 begins to conduct an interception under the search warrant order
683 or 10 days after the search warrant is approved order is
684 entered, whichever occurs earlier. Extensions of a search
685 warrant an order may be granted but only upon application for an
686 extension made in accordance with subsection (1) and upon the
687 court making the findings required by subsection (3). The period
688 of extension shall be no longer than the authorizing judge deems
689 necessary to achieve the purposes for which it was granted and
690 in no event for longer than 30 days. Every search warrant order
691 and extension thereof shall contain a provision that the
692 authorization to intercept shall be executed as soon as
693 practicable, shall be conducted in such a way as to minimize the
694 interception of communications not otherwise subject to
695 interception under ss. 934.03-934.09, and must terminate upon
696 attainment of the authorized objective or in any event in 30
697 days. If the intercepted communication is in code or foreign
698 language and an expert in that foreign language or code is not
699 reasonably available during the interception period,
700 minimization may be accomplished as soon as practicable after
701 such interception. An interception under ss. 934.03-934.09 may
702 be conducted in whole or in part by government personnel or by
703 an individual operating under a contract with the government,
704 acting under the supervision of an agent or officer of the law
705 enforcement agency authorized to conduct the interception.
706 (6) Whenever a search warrant an order authorizing
707 interception is granted entered pursuant to ss. 934.03-934.09,
708 the search warrant order may require reports to be made to the
709 judge who issued the search warrant order showing what progress
710 has been made toward achievement of the authorized objective and
711 the need for continued interception. Such reports shall be made
712 at such intervals as the judge may require.
713 (7) Notwithstanding any other provision of this chapter,
714 any investigative or law enforcement officer specially
715 designated by the Governor, the Attorney General, the statewide
716 prosecutor, or a state attorney acting under this chapter, who
717 reasonably determines that:
718 (a) An emergency exists that:
719 1. Involves immediate danger of death or serious physical
720 injury to any person, the danger of escape of a prisoner, or
721 conspiratorial activities threatening the security interest of
722 the nation or state; and
723 2. Requires that a wire, oral, or electronic communication
724 be intercepted before a search warrant an order authorizing such
725 interception can, with due diligence, be obtained; and
726 (b) There are grounds upon which a search warrant an order
727 could be entered under this chapter to authorize such
728 interception
729
730 may intercept such wire, oral, or electronic communication if an
731 application for a search warrant an order approving the
732 interception is made in accordance with this section within 48
733 hours after the interception has occurred or begins to occur. In
734 the absence of a search warrant an order, such interception
735 shall immediately terminate when the communication sought is
736 obtained or when the application for the search warrant order is
737 denied, whichever is earlier. If such application for approval
738 is denied, or in any other case in which the interception is
739 terminated without a search warrant an order having been issued,
740 the contents of any wire, oral, or electronic communication
741 intercepted shall be treated as having been obtained in
742 violation of s. 934.03(4), and an inventory shall be served as
743 provided for in paragraph (8)(e) on the person named in the
744 application.
745 (8)(a) The contents of any wire, oral, or electronic
746 communication intercepted by any means authorized by ss. 934.03
747 934.09 shall, if possible, be recorded on tape or wire or other
748 comparable device. The recording of the contents of any wire,
749 oral, or electronic communication under this subsection shall be
750 kept in such a way as will protect the recording from editing or
751 other alterations. Immediately upon the expiration of the period
752 of the search warrant order, or extensions thereof, such
753 recordings shall be made available to the judge approving the
754 search warrant issuing such order and sealed under his or her
755 directions. Custody of the recordings shall be wherever the
756 judge orders. They shall not be destroyed except upon an order
757 of the issuing or denying judge, or that judge’s successor in
758 office, and in any event shall be kept for 10 years. Duplicate
759 recordings may be made for use or disclosure pursuant to the
760 provisions of s. 934.08(1) and (2) for investigations, or for
761 purposes of discovery as required by law.
762 (b) The presence of the seal provided for by this
763 subsection, or a satisfactory explanation for the absence
764 thereof, shall be a prerequisite for the use or disclosure of
765 the contents of any wire, oral, or electronic communication or
766 evidence derived therefrom under s. 934.08(3), as required by
767 federal law.
768 (c) Applications made and search warrants orders granted
769 under ss. 934.03-934.09 shall be sealed by the judge. Custody of
770 the applications and search warrants orders shall be wherever
771 the judge directs. As required by federal law, such applications
772 and search warrants orders shall be disclosed only for purposes
773 of discovery or upon a showing of good cause before a judge of
774 competent jurisdiction and shall not be destroyed except on
775 order of the issuing or denying judge, or that judge’s successor
776 in office, and in any event shall be kept for 10 years.
777 (d) Any violation of the provisions of this subsection may
778 be punished as contempt of the issuing or denying judge.
779 (e) Within a reasonable time but not later than 90 days
780 after the termination of the period of a search warrant an order
781 or extensions thereof, the issuing or denying judge shall cause
782 to be served on the persons named in the search warrant order or
783 the application, and such other parties to intercepted
784 communications as the judge may determine in his or her
785 discretion to be in the interest of justice, an inventory which
786 shall include notice of:
787 1. The fact of the approval of the search warrant entry of
788 the order or the application.
789 2. The date of the approval of the search warrant entry and
790 the period of authorized, approved, or disapproved interception,
791 or the denial of the application.
792 3. The fact that during the period wire, oral, or
793 electronic communications were or were not intercepted.
794
795 The judge, upon the filing of a motion, may make available to
796 such person or the person’s counsel for inspection such portions
797 of the intercepted communications, applications, and search
798 warrants orders as the judge determines to be in the interest of
799 justice. On an ex parte showing of good cause to a judge of
800 competent jurisdiction, the serving of the inventory required by
801 this paragraph may be postponed.
802 (9) As required by federal law, The contents of any
803 intercepted wire, oral, or electronic communication or evidence
804 derived therefrom shall not be received in evidence or otherwise
805 disclosed in any trial, hearing, or other proceeding unless each
806 party, not less than 10 days before the trial, hearing, or
807 proceeding, has been furnished with a copy of the search warrant
808 court order and accompanying application under which the
809 interception was authorized or approved. This 10-day period may
810 be waived by the judge if he or she finds that it was not
811 possible to furnish the party with the above information 10 days
812 before the trial, hearing, or proceeding and that the party will
813 not be prejudiced by the delay in receiving such information.
814 (10)(a) An Any aggrieved person before or in any trial,
815 hearing, or proceeding in or before any court, department,
816 officer, agency, regulatory body, or other authority may move to
817 suppress the contents of any intercepted wire, oral, or
818 electronic communication, or evidence derived therefrom, on the
819 grounds that:
820 1. The communication was unlawfully intercepted;
821 2. The search warrant order of authorization or approval
822 under which it was intercepted is insufficient on its face; or
823 3. The interception was not made in conformity with the
824 search warrant order of authorization or approval.
825 (b) Except as otherwise provided in the applicable Florida
826 Rules of Criminal Procedure, in a criminal matter:
827 1. Such motion shall be made before the trial, hearing, or
828 proceeding unless there was no opportunity to make such motion
829 or the person was not aware of the grounds of the motion.
830 2. If the motion is granted, the contents of the
831 intercepted wire or oral communication, or evidence derived
832 therefrom, shall be treated as having been obtained in violation
833 of ss. 934.03-934.09 and are not admissible as evidence.
834 3. The judge, upon the filing of such motion by the
835 aggrieved person, may make available to the aggrieved person or
836 his or her counsel for inspection such portions of the
837 intercepted communication or evidence derived therefrom as the
838 judge determines to be in the interest of justice.
839 (c)(b) In addition to any other right to appeal, the state
840 shall have the right to appeal from an order granting a motion
841 to suppress made under paragraph (a) or the denial of an
842 application for a search warrant an order of approval if the
843 attorney shall certify to the judge or other official granting
844 such motion or denying such application that the appeal is not
845 taken for purposes of delay. Such appeal shall be taken within
846 30 days after the date the order was entered and shall be
847 diligently prosecuted.
848 (d)(c) The remedies and sanctions described in ss. 934.03
849 934.10 with respect to the interception of electronic
850 communications are the only judicial remedies and sanctions for
851 violations of those sections involving such communications.
852 (11) The requirements of subparagraph (1)(b)2. and
853 paragraph (3)(d) relating to the specification of the facilities
854 from which, or the place where, the communication is to be
855 intercepted do not apply if:
856 (a) In the case of an application with respect to the
857 interception of an oral communication:
858 1. The application is by an agent or officer of a law
859 enforcement agency and is approved by the Governor, the Attorney
860 General, the statewide prosecutor, or a state attorney.
861 2. The application contains a full and complete statement
862 as to why such specification is not practical and identifies the
863 person committing the offense and whose communications are to be
864 intercepted.
865 3. The judge finds that such specification is not
866 practical.
867 (b) In the case of an application with respect to a wire or
868 electronic communication:
869 1. The application is by an agent or officer of a law
870 enforcement agency and is approved by the Governor, the Attorney
871 General, the statewide prosecutor, or a state attorney.
872 2. The application identifies the person believed to be
873 committing the offense and whose communications are to be
874 intercepted and the applicant makes a showing that there is
875 probable cause to believe that the person’s actions could have
876 the effect of thwarting interception from a specified facility
877 or that the person whose communications are to be intercepted
878 has removed, or is likely to remove, himself or herself to
879 another judicial circuit within the state.
880 3. The judge finds that such showing has been adequately
881 made.
882 4. The search warrant order authorizing or approving the
883 interception is limited to interception only for such time as it
884 is reasonable to presume that the person identified in the
885 application is or was reasonably proximate to the instrument
886 through which such communication will be or was transmitted.
887
888 Consistent with this paragraph, a judge of competent
889 jurisdiction may authorize interception within this state,
890 whether the interception is within or outside the court’s
891 jurisdiction, if the application for the interception makes a
892 showing that some activity or conspiracy believed to be related
893 to, or in furtherance of, the criminal predicate for the
894 requested interception has occurred or will likely occur, or the
895 communication to be intercepted or expected to be intercepted is
896 occurring or will likely occur, in whole or in part, within the
897 jurisdiction of the court where the order is being sought.
898 (12) If an interception of a communication is to be carried
899 out pursuant to subsection (11), such interception may not begin
900 until the facilities from which, or the place where, the
901 communication is to be intercepted is ascertained by the person
902 implementing the interception search warrant order. A provider
903 of wire or electronic communications service that has received a
904 search warrant an order as provided under paragraph (11)(b) may
905 petition the court to modify or quash the search warrant order
906 on the ground that the interception cannot be performed in a
907 timely or reasonable fashion. The court, upon notice to the
908 state, shall decide such a petition expeditiously.
909 (13) Consistent with this section, a judge of competent
910 jurisdiction may authorize interception within this state,
911 whether the interception is within or outside the court’s
912 jurisdiction, if the application for the interception makes a
913 showing that some activity or conspiracy believed to be related
914 to, or in furtherance of, the criminal predicate for the
915 requested interception has occurred or will likely occur, or the
916 communication to be intercepted or expected to be intercepted is
917 occurring or will likely occur, in whole or in part, within the
918 jurisdiction of the court where the search warrant is being
919 sought.
920 Section 9. Subsection (2) of section 934.10, Florida
921 Statutes, is amended, and subsection (1) of that section is
922 republished, to read:
923 934.10 Civil remedies.—
924 (1) Any person whose wire, oral, or electronic
925 communication is intercepted, disclosed, or used in violation of
926 ss. 934.03-934.09 shall have a civil cause of action against any
927 person or entity who intercepts, discloses, or uses, or procures
928 any other person or entity to intercept, disclose, or use, such
929 communications and shall be entitled to recover from any such
930 person or entity which engaged in that violation such relief as
931 may be appropriate, including:
932 (a) Preliminary or equitable or declaratory relief as may
933 be appropriate;
934 (b) Actual damages, but not less than liquidated damages
935 computed at the rate of $100 a day for each day of violation or
936 $1,000, whichever is higher;
937 (c) Punitive damages; and
938 (d) A reasonable attorney’s fee and other litigation costs
939 reasonably incurred.
940 (2) A good faith reliance on any of the following
941 constitutes a complete defense to any civil, criminal, or
942 administrative action arising out of such conduct under the laws
943 of this state:
944 (a) A search warrant court order, subpoena, or legislative
945 authorization as provided for in ss. 934.03-934.09;,
946 (b) A request of an investigative or law enforcement
947 officer under s. 934.09(7);, or
948 (c) A good faith determination that Florida or federal law,
949 other than 18 U.S.C. s. 2511(2)(d), authorized permitted the
950 conduct complained of
951
952 shall constitute a complete defense to any civil or criminal, or
953 administrative action arising out of such conduct under the laws
954 of this state.
955 Section 10. Section 934.21, Florida Statutes, is amended to
956 read:
957 934.21 Unlawful access to stored communications;
958 penalties.—
959 (1) Except as provided in subsection (3), whoever:
960 (a) Intentionally accesses without authorization a facility
961 through which an electronic communication service is provided,
962 or
963 (b) Intentionally exceeds an authorization to access such
964 facility,
965
966 and thereby obtains, alters, or prevents authorized access to a
967 wire or electronic communication while it is in electronic
968 storage in such system shall be punished as provided in
969 subsection (2).
970 (2) The punishment for an offense under subsection (1) is
971 as follows:
972 (a) If the offense is committed for purposes of commercial
973 advantage, malicious destruction or damage, or private
974 commercial gain, the person is:
975 1. In the case of a first offense under this subsection,
976 commits guilty of a misdemeanor of the first degree, punishable
977 as provided in s. 775.082, s. 775.083, or s. 934.41.
978 2. In the case of any subsequent offense under this
979 subsection, commits guilty of a felony of the third degree,
980 punishable as provided in s. 775.082, s. 775.083, s. 775.084, or
981 s. 934.41.
982 (b) In any other case, the person commits is guilty of a
983 misdemeanor of the second degree, punishable as provided in s.
984 775.082 or s. 775.083.
985 (3) Subsection (1) does not apply with respect to conduct
986 authorized:
987 (a) By the person or entity providing a wire, oral, or
988 electronic communications service, including through cellular
989 phones, microphone-enabled household devices, or portable
990 electronic communication devices;
991 (b) By a user of a wire, oral, or electronic communications
992 service, including through cellular phones, microphone-enabled
993 household devices, or portable electronic communication devices,
994 with respect to a communication of or intended for that user; or
995 (c) In s. 934.09, s. 934.23, or s. 934.24;
996 (d) In chapter 933; or
997 (e) For accessing for a legitimate business purpose
998 information that is not personally identifiable or that has been
999 collected in a way that prevents identification of the user of
1000 the device.
1001 Section 11. Section 934.42, Florida Statutes, is amended to
1002 read:
1003 934.42 Mobile tracking device and location tracking
1004 authorization.—
1005 (1) As used in this section, the term:
1006 (a) “Mobile tracking device” means an electronic or
1007 mechanical device that tracks the movement of a person or an
1008 object.
1009 (b) “Real-time location tracking” means the:
1010 1. Installation and use of a mobile tracking device on the
1011 object to be tracked;
1012 2. Acquisition of real-time cell-site location data; or
1013 3. Acquisition of real-time precise global positioning
1014 system location data.
1015 (c) “Historical location data” means historical precise
1016 global positioning system location data in the possession of a
1017 provider.
1018 (2)(1) An investigative or law enforcement officer may make
1019 application to a judge of competent jurisdiction for a search
1020 warrant an order authorizing or approving real-time location
1021 tracking or the acquisition of historical location data in the
1022 possession of the provider the installation and use of a mobile
1023 tracking device.
1024 (3)(2) An application under subsection (2) (1) of this
1025 section must include:
1026 (a) A statement of the identity of the applicant and the
1027 identity of the law enforcement agency conducting the
1028 investigation.
1029 (b) A statement setting forth a reasonable period of time
1030 the mobile tracking device may be used or the location data may
1031 be obtained in real time, not to exceed 45 days from the date on
1032 which the search warrant is issued. The court may, for good
1033 cause, grant one or more extensions for a reasonable period of
1034 time, not to exceed 45 days each. When seeking historical
1035 location data, the applicant must specify a date range for the
1036 data sought certification by the applicant that the information
1037 likely to be obtained is relevant to an ongoing criminal
1038 investigation being conducted by the investigating agency.
1039 (c) A statement of the offense to which the information
1040 likely to be obtained relates.
1041 (d) A statement as to whether it may be necessary to use
1042 and monitor the mobile tracking device outside the jurisdiction
1043 of the court from which authorization is being sought.
1044 (4)(3) Upon application made as provided under subsection
1045 (3) (2), the court, if it finds probable cause that the
1046 certification and finds that the statements required by
1047 subsection (3) (2) have been made in the application, must grant
1048 a search warrant shall enter an ex parte order authorizing real
1049 time location tracking or the acquisition of historical location
1050 data the installation and use of a mobile tracking device. Such
1051 search warrant order may authorize the location tracking use of
1052 the device within the jurisdiction of the court and outside that
1053 jurisdiction but within the State of Florida if the location
1054 tracking device is initiated installed within the jurisdiction
1055 of the court. The search warrant must command the investigative
1056 or law enforcement officer to complete any initiation of the
1057 location tracking or execution of the search warrant for
1058 historical location data authorized by the search warrant within
1059 a specified period of time not to exceed 10 calendar days.
1060 (5)(4) A court may not require greater specificity or
1061 additional information beyond that which is required by law and
1062 this section as a requisite for issuing a search warrant an
1063 order.
1064 (6) Within 10 days after the time period specified in
1065 paragraph (3)(b) has ended, the investigative or law enforcement
1066 officer executing a search warrant must return the search
1067 warrant to the issuing judge. When the search warrant is
1068 authorizing the acquisition of historical location data, the
1069 investigative or law enforcement officer executing the search
1070 warrant must return the search warrant to the issuing judge
1071 within 10 days after receipt of the records. The investigative
1072 or law enforcement officer may do so by reliable electronic
1073 means.
1074 (7) Within 10 days after the time period specified in
1075 paragraph (3)(b) has ended, the investigative or law enforcement
1076 officer executing a search warrant must serve a copy of the
1077 search warrant on the person who, or whose property, was
1078 tracked. When the search warrant is authorizing the acquisition
1079 of historical location data, the investigative or law
1080 enforcement officer executing the search warrant must serve a
1081 copy of the search warrant on the person whose data was obtained
1082 within 10 days after receipt of the records. Service may be
1083 accomplished by delivering a copy to the person who, or whose
1084 property, was tracked or whose data was obtained or by leaving a
1085 copy at the person’s residence or usual place of abode with an
1086 individual of suitable age and discretion who resides at that
1087 location and by mailing a copy to the person’s last known
1088 address. Upon a showing of good cause to a court of competent
1089 jurisdiction, the court may grant one or more postponements of
1090 this notice for a period of 90 days each.
1091 (8)(5) The standards established by Florida courts and the
1092 United States Supreme Court for the installation, use, or and
1093 monitoring of mobile tracking devices and the acquisition of
1094 location data shall apply to the installation, use, or
1095 monitoring and use of any device and the acquisition of location
1096 data as authorized by this section.
1097 (6) As used in this section, a “tracking device” means an
1098 electronic or mechanical device which permits the tracking of
1099 the movement of a person or object.
1100 (9)(a) Notwithstanding any other provision of this chapter,
1101 any investigative or law enforcement officer specially
1102 designated by the Governor, the Attorney General, the statewide
1103 prosecutor, or a state attorney acting pursuant to this chapter
1104 who reasonably determines that:
1105 1. An emergency exists which:
1106 a. Involves immediate danger of death or serious physical
1107 injury to any person or the danger of escape of a prisoner; and
1108 b. Requires real-time location tracking before a search
1109 warrant authorizing such tracking can, with due diligence, be
1110 obtained; and
1111 2. There are grounds upon which a search warrant could be
1112 issued under this chapter to authorize such tracking,
1113
1114 may engage in real-time location tracking if, within 48 hours
1115 after the tracking has occurred or begins to occur, a search
1116 warrant approving the tracking is issued in accordance with this
1117 section.
1118 (b) In the absence of an authorizing search warrant, such
1119 tracking must immediately terminate when the information sought
1120 is obtained, when the application for the search warrant is
1121 denied, or when 48 hours have lapsed since the tracking began,
1122 whichever is earlier.
1123 Section 12. For the purpose of incorporating the amendments
1124 made by this act to sections 934.03 and 934.07, Florida
1125 Statutes, in a reference thereto, paragraph (b) of subsection
1126 (2) of section 934.22, Florida Statutes, is reenacted to read:
1127 934.22 Voluntary disclosure of customer communications or
1128 records.—
1129 (2) A provider described in subsection (1) may divulge the
1130 contents of a communication:
1131 (b) As otherwise authorized in s. 934.03(2)(a), s. 934.07,
1132 or s. 934.23.
1133 Section 13. For the purpose of incorporating the amendments
1134 made by this act to sections 934.09 and 934.21, Florida
1135 Statutes, in references thereto, subsections (1) and (4) of
1136 section 934.27, Florida Statutes, are reenacted to read:
1137 934.27 Civil action: relief; damages; defenses.—
1138 (1) Except as provided in s. 934.23(5), any provider of
1139 electronic communication service, or subscriber or customer
1140 thereof, aggrieved by any violation of ss. 934.21-934.28 in
1141 which the conduct constituting the violation is engaged in with
1142 a knowing or intentional state of mind may, in a civil action,
1143 recover from the person or entity which engaged in that
1144 violation such relief as is appropriate.
1145 (4) A good faith reliance on any of the following is a
1146 complete defense to any civil or criminal action brought under
1147 ss. 934.21-934.28:
1148 (a) A court warrant or order, a subpoena, or a statutory
1149 authorization, including, but not limited to, a request of an
1150 investigative or law enforcement officer to preserve records or
1151 other evidence, as provided in s. 934.23(7).
1152 (b) A request of an investigative or law enforcement
1153 officer under s. 934.09(7).
1154 (c) A good faith determination that s. 934.03(3) permitted
1155 the conduct complained of.
1156 Section 14. For the purpose of incorporating the amendment
1157 made by this act to section 934.21, Florida Statutes, in a
1158 reference thereto, subsection (6) of section 934.23, Florida
1159 Statutes, is reenacted to read:
1160 934.23 Required disclosure of customer communications or
1161 records.—
1162 (6) No cause of action shall lie in any court against any
1163 provider of wire or electronic communication service, its
1164 officers, employees, agents, or other specified persons for
1165 providing information, facilities, or assistance in accordance
1166 with the terms of a court order, warrant, subpoena, or
1167 certification under ss. 934.21-934.28.
1168 Section 15. For the purpose of incorporating the amendment
1169 made by this act to section 934.21, Florida Statutes, in
1170 references thereto, subsections (6) and (7) of section 934.24,
1171 Florida Statutes, are reenacted to read:
1172 934.24 Backup preservation; customer notification;
1173 challenges by customer.—
1174 (6) Within 14 days after notice by the investigative or law
1175 enforcement officer to the subscriber or customer under
1176 subsection (2), the subscriber or customer may file a motion to
1177 quash the subpoena or vacate the court order seeking contents of
1178 electronic communications, with copies served upon the
1179 investigative or law enforcement officer and with written notice
1180 of such challenge to the service provider. A motion to vacate a
1181 court order must be filed in the court which issued the order. A
1182 motion to quash a subpoena must be filed in the circuit court in
1183 the circuit from which the subpoena issued. Such motion or
1184 application must contain an affidavit or sworn statement:
1185 (a) Stating that the applicant is a subscriber or customer
1186 of the service from which the contents of electronic
1187 communications maintained for her or him have been sought, and
1188 (b) Stating the applicant’s reasons for believing that the
1189 records sought are not relevant to a legitimate law enforcement
1190 inquiry or that there has not been substantial compliance with
1191 the provisions of ss. 934.21-934.28 in some other respect.
1192 (7) Except as otherwise obtained under paragraph (3)(a),
1193 service must be made under this section upon an investigative or
1194 law enforcement officer by delivering or mailing by registered
1195 or certified mail a copy of the papers to the person, office, or
1196 department specified in the notice which the subscriber or
1197 customer has received pursuant to ss. 934.21-934.28. For the
1198 purposes of this subsection, the term “delivering” shall be
1199 construed in accordance with the definition of “delivery” as
1200 provided in Rule 1.080, Florida Rules of Civil Procedure.
1201 Section 16. For the purpose of incorporating the amendment
1202 made by this act to section 934.21, Florida Statutes, in a
1203 reference thereto, subsection (5) of section 934.25, Florida
1204 Statutes, is reenacted to read:
1205 934.25 Delayed notice.—
1206 (5) Upon the expiration of the period of delay of
1207 notification under subsection (1) or subsection (4), the
1208 investigative or law enforcement officer must serve upon or
1209 deliver by registered or first-class mail to the subscriber or
1210 customer a copy of the process or request together with notice
1211 which:
1212 (a) States with reasonable specificity the nature of the
1213 law enforcement inquiry, and
1214 (b) Informs the subscriber or customer:
1215 1. That information maintained for such subscriber or
1216 customer by the service provider named in the process or request
1217 was supplied to or requested by the investigative or law
1218 enforcement officer and the date on which such information was
1219 so supplied or requested.
1220 2. That notification of such subscriber or customer was
1221 delayed.
1222 3. What investigative or law enforcement officer or what
1223 court made the certification or determination pursuant to which
1224 that delay was made.
1225 4. Which provision of ss. 934.21-934.28 allowed such delay.
1226 Section 17. For the purpose of incorporating the amendment
1227 made by this act to section 934.21, Florida Statutes, in a
1228 reference thereto, section 934.28, Florida Statutes, is
1229 reenacted to read:
1230 934.28 Exclusivity of remedies and sanctions.—The remedies
1231 and sanctions described in ss. 934.21-934.27 are the only
1232 judicial remedies and sanctions for violation of those sections.
1233 Section 18. This act shall take effect July 1, 2020.