Bill Text: FL S0916 | 2022 | Regular Session | Introduced
Bill Title: Searches of Cellular Phones and Other Electronic Devices
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2022-03-14 - Died in Judiciary [S0916 Detail]
Download: Florida-2022-S0916-Introduced.html
Florida Senate - 2022 SB 916
By Senator Brandes
24-00066-22 2022916__
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 terms “oral communication” and “electronic
16 communication”; defining the terms “microphone-enabled
17 household device” and “portable electronic
18 communication device”; amending s. 934.03, F.S.;
19 authorizing specified persons to provide information,
20 facilities, or technical assistance to a person
21 authorized by law to intercept wire, oral, or
22 electronic communications if such person has been
23 provided with a search warrant issued by a judge of
24 competent jurisdiction; prohibiting specified persons
25 from disclosing the existence of any interception of a
26 wire, oral, or electronic communication with respect
27 to which the person has been served with a search
28 warrant, rather than a court order; amending s.
29 934.06, F.S.; prohibiting the use of certain
30 communication content obtained without a search
31 warrant supported by probable cause in any trial,
32 hearing, or other proceeding; providing an exception;
33 amending s. 934.07, F.S.; authorizing a judge to issue
34 a search warrant, rather than grant a court order, in
35 conformity with specified provisions; authorizing the
36 Department of Law Enforcement to request a law
37 enforcement agency that provided certain information
38 to join the department in seeking a new search
39 warrant; amending s. 934.09, F.S.; requiring that each
40 application for a search warrant, rather than an
41 order, authorizing or approving the interception of
42 wire, oral, or electronic communications be made in
43 writing and state the applicant’s authority; revising
44 the required information that each application for a
45 search warrant must include; authorizing a judge,
46 under certain circumstances, to authorize a search
47 warrant ex parte, rather than an ex parte order, based
48 on the application; specifying requirements for such
49 search warrants; authorizing an aggrieved person to
50 move to suppress the contents of certain wire, oral,
51 or electronic communications before, as well as
52 during, a trial, hearing, or proceeding; providing for
53 inadmissibility of certain evidence if a certain
54 motion is granted; authorizing a judge of competent
55 jurisdiction to authorize interception within this
56 state under specified circumstances; amending s.
57 934.10, F.S.; providing that a good faith reliance on
58 a search warrant, rather than a court order, subpoena,
59 or legislative authorization, issued under certain
60 provisions constitutes a complete defense against
61 specified actions; making technical changes; amending
62 s. 934.21, F.S.; revising the exceptions to conduct
63 that constitutes unlawful access to stored
64 communications; conforming a provision to changes made
65 by the act; amending s. 934.42, F.S.; defining the
66 terms “historical location data,” “mobile tracking
67 device,” and “real-time location tracking”;
68 authorizing an investigative or law enforcement
69 officer to apply to a judge of competent jurisdiction
70 for a search warrant, rather than an order,
71 authorizing real-time location tracking or acquisition
72 of historical location data; requiring an application
73 for a search warrant to include a statement setting
74 forth a reasonable period of time during which the
75 mobile tracking device may be used or the location
76 data may be obtained in real time, not to exceed a
77 specified limit; authorizing a court to grant, for
78 good cause, extensions that do not individually exceed
79 a specified limit; requiring an applicant seeking
80 historical location data to specify a date range for
81 the data sought; deleting a provision requiring a
82 certification to be included in the application;
83 requiring the court, if it finds probable cause and
84 that the application contains the required statements,
85 to grant a search warrant ex parte rather than
86 entering an ex parte order; specifying that the search
87 warrant may authorize real-time location tracking or
88 acquisition of historical location data; providing
89 that the search warrant may authorize specified
90 location tracking; requiring the search warrant to
91 command the investigative or law enforcement officer
92 to complete any initiation of the location tracking or
93 execution of the search warrant for historical
94 location data authorized by the search warrant within
95 a certain timeframe; providing requirements for the
96 return of the search warrant to the judge and for
97 service of a copy of the search warrant on the person
98 who was tracked or whose property was tracked;
99 providing requirements for returning and serving a
100 search warrant authorizing the acquisition of
101 historical location data; authorizing a court, for
102 good cause, to postpone the notice requirement for a
103 specified period of time; requiring that the standards
104 established by Florida courts for the installation,
105 use, or monitoring of mobile tracking devices and the
106 acquisition of location data apply to the
107 installation, use, or monitoring of any device and the
108 acquisition of location data as authorized by certain
109 provisions; deleting the definition of the term
110 “tracking device”; authorizing any investigative or
111 law enforcement officer who is specially designated by
112 certain persons and who makes specified determinations
113 to engage in real-time location tracking if a search
114 warrant is obtained, as specified, after the tracking
115 has occurred or begins to occur; specifying when real
116 time location tracking must terminate; reenacting s.
117 934.22(2)(b), F.S., relating to voluntary disclosure
118 of customer communications or records, to incorporate
119 the amendments made to ss. 934.03 and 934.07, F.S., in
120 references thereto; reenacting s. 934.27(1) and (4),
121 F.S., relating to relief, damages, and defenses for
122 certain civil actions, to incorporate the amendments
123 made to ss. 934.09 and 934.21, F.S., in references
124 thereto; reenacting ss. 934.23(6), 934.24(6) and (7),
125 934.25(5), and 934.28, F.S., relating to required
126 disclosures of customer communications or records, a
127 subscriber or customer filing a motion for certain
128 relief and customer notification, delayed notice, and
129 the exclusivity of remedies and sanctions for certain
130 violations, respectively, to incorporate the amendment
131 made to s. 934.21, F.S., in references thereto;
132 providing an effective date.
133
134 Be It Enacted by the Legislature of the State of Florida:
135
136 Section 1. Section 933.02, Florida Statutes, is amended to
137 read:
138 933.02 Grounds for issuance of search warrant.—Upon proper
139 affidavits being made, a search warrant may be issued under the
140 provisions of this chapter upon any of the following grounds:
141 (1) When the property shall have been stolen or embezzled
142 in violation of law.;
143 (2) When any property shall have been used:
144 (a) As a means to commit any crime;
145 (b) In connection with gambling, gambling implements and
146 appliances; or
147 (c) In violation of s. 847.011 or other laws in reference
148 to obscene prints and literature.;
149 (3) When any property, or when content held within a
150 cellular phone, a portable electronic communication device as
151 defined in s. 934.02(28), or a microphone-enabled household
152 device as defined in s. 934.02(27), constitutes evidence
153 relevant to proving that a felony has been committed.;
154 (4) When any property is being held or possessed:
155 (a) In violation of any of the laws prohibiting the
156 manufacture, sale, and transportation of intoxicating liquors;
157 (b) In violation of the fish and game laws;
158 (c) In violation of the laws relative to food and drug; or
159 (d) In violation of the laws relative to citrus disease
160 pursuant to s. 581.184.; or
161 (5) When the laws in relation to cruelty to animals, as
162 provided in chapter 828, have been or are violated in any
163 particular building or place.
164
165 This section also applies to any papers or documents used as a
166 means of or in aid of the commission of any offense against the
167 laws of the state.
168 Section 2. Section 933.04, Florida Statutes, is amended to
169 read:
170 933.04 Affidavits.—The right of the people to be secure in
171 their persons, houses, papers, and effects against unreasonable
172 seizures and searches and against the unreasonable interception
173 of private communications by any means may shall not be violated
174 and a no search warrant may not shall be issued except upon
175 probable cause, supported by oath or affirmation particularly
176 describing the place to be searched and the person and thing to
177 be seized.
178 Section 3. Section 934.01, Florida Statutes, is amended to
179 read:
180 934.01 Legislative findings.—On the basis of its own
181 investigations and of published studies, the Legislature makes
182 the following findings:
183 (1) Wire communications are normally conducted through the
184 use of facilities which form part of an intrastate network. The
185 same facilities are used for interstate and intrastate
186 communications.
187 (2) In order to protect effectively the privacy of wire,
188 and oral, and electronic communications, to protect the
189 integrity of court and administrative proceedings, and to
190 prevent the obstruction of intrastate commerce, it is necessary
191 for the Legislature to define the circumstances and conditions
192 under which the interception of wire, and oral, and electronic
193 communications may be authorized and to prohibit any
194 unauthorized interception of such communications and the use of
195 the contents thereof in evidence in courts and administrative
196 proceedings.
197 (3) Organized criminals make extensive use of wire, and
198 oral, and electronic communications in their criminal
199 activities. The interception of such communications to obtain
200 evidence of the commission of crimes or to prevent their
201 commission is an indispensable aid to law enforcement and the
202 administration of justice.
203 (4) To safeguard the privacy of innocent persons, the
204 interception of wire, or oral, or electronic communications when
205 none of the parties to the communication has consented to the
206 interception should be allowed only when authorized by a court
207 of competent jurisdiction and should remain under the control
208 and supervision of the authorizing court. Interception of wire,
209 and oral, and electronic communications should further be
210 limited to certain major types of offenses and specific
211 categories of crime with assurance that the interception is
212 justified and that the information obtained thereby will not be
213 misused.
214 (5) To safeguard the privacy of innocent persons, the
215 Legislature recognizes the subjective expectation of privacy in
216 real-time cell-site location data, real-time precise global
217 positioning system location data, and historical precise global
218 positioning system location data, which society is now prepared
219 to accept is objectively reasonable. As such, the law
220 enforcement collection of the precise location of a person,
221 cellular phone, or portable electronic communication device
222 without the consent of the person or owner of the cellular phone
223 or portable electronic communication device should be allowed
224 only when authorized by a search warrant issued by a court of
225 competent jurisdiction and should remain under the control and
226 supervision of the authorizing court.
227 (6) The Legislature recognizes that the use of portable
228 electronic communication devices is growing at a rapidly
229 increasing rate. These devices can store, and encourage the
230 storing of, an almost limitless amount of personal and private
231 information. Often linked to the Internet, these devices are
232 commonly used to access personal and business information and
233 databases in computers and servers that can be located anywhere
234 in the world. The user of a portable electronic communication
235 device has a reasonable and justifiable expectation of privacy
236 in the information that these devices contain.
237 (7) The Legislature recognizes that the use of household
238 electronic devices, including microphone-enabled household
239 devices, is growing rapidly. These devices often contain
240 microphones that listen for and respond to environmental cues.
241 These household devices are generally connected to and
242 communicate through the Internet, resulting in the storage of
243 and accessibility to daily household information in the device
244 itself or at a remote computing service. Persons should not have
245 to choose between using household technological enhancements and
246 conveniences or preserving the right to privacy in their own
247 homes.
248 Section 4. Subsections (2) and (12) of section 934.02,
249 Florida Statutes, are amended, and subsections (27) and (28) are
250 added to that section, to read:
251 934.02 Definitions.—As used in this chapter:
252 (2) “Oral communication” means any oral communication
253 uttered by a person exhibiting an expectation that such
254 communication is not subject to interception under circumstances
255 justifying such expectation, including the use of a microphone
256 enabled household device, and does not mean any public oral
257 communication uttered at a public meeting or any electronic
258 communication.
259 (12) “Electronic communication” means any transfer of
260 signs, signals, writing, images, sounds, data, or intelligence
261 of any nature transmitted in whole or in part by a wire, a
262 radio, a communication tower, a satellite, or an
263 electromagnetic, a photoelectronic, or a photooptical system
264 which that affects intrastate, interstate, or foreign commerce,
265 but does not include:
266 (a) Any wire or oral communication;
267 (b) Any communication made through a tone-only paging
268 device; or
269 (c) Any communication from an electronic or mechanical
270 device which permits the tracking of the movement of a person or
271 an object; or
272 (d) Electronic funds transfer information stored by a
273 financial institution in a communications system used for the
274 electronic storage and transfer of funds.
275 (27) “Microphone-enabled household device” means a device,
276 a sensor, or another physical object within a residence which:
277 (a) Is capable of connecting to the Internet, directly or
278 indirectly, or to another connected device;
279 (b) Is capable of creating, receiving, accessing,
280 processing, or storing electronic data or communications;
281 (c) Communicates with, by any means, another device,
282 entity, or individual; and
283 (d) Contains a microphone designed to listen for and
284 respond to environmental cues.
285 (28) “Portable electronic communication device” means an
286 object that may be easily transported or conveyed by a person;
287 is capable of creating, receiving, accessing, processing, or
288 storing electronic data or communications; and communicates
289 with, by any means, another device, entity, or individual.
290 Section 5. Subsection (2) of section 934.03, Florida
291 Statutes, is amended to read:
292 934.03 Interception and disclosure of wire, oral, or
293 electronic communications prohibited.—
294 (2)(a)1. It is lawful under this section and ss. 934.04
295 934.09 for an operator of a switchboard, or an officer,
296 employee, or agent of a provider of wire or electronic
297 communication service whose facilities are used in the
298 transmission of a wire or electronic communication, to
299 intercept, disclose, or use that communication in the normal
300 course of his or her employment while engaged in any activity
301 which is a necessary incident to the rendition of his or her
302 service or to the protection of the rights or property of the
303 provider of that service, except that a provider of wire
304 communication service to the public may not use shall not
305 utilize service observing or random monitoring except for
306 mechanical or service quality control checks.
307 2. Notwithstanding any other law, a provider of wire, oral,
308 or electronic communication service, or an officer, employee, or
309 agent thereof, or landlord, custodian, or other person, may
310 provide information, facilities, or technical assistance to a
311 person authorized by law to intercept wire, oral, or electronic
312 communications if such provider, or an officer, employee, or
313 agent thereof, or landlord, custodian, or other person, has been
314 provided with:
315 a. A court order directing such assistance signed by the
316 authorizing judge; or
317 b. A certification in writing by a person specified in s.
318 934.09(7) that a search no warrant or court order is not
319 required by law, that all statutory requirements have been met,
320 and that the specified assistance is required, setting forth the
321 period of time during which the provision of the information,
322 facilities, or technical assistance is authorized and specifying
323 the information, facilities, or technical assistance required;
324 or
325 b. A search warrant issued by a judge of competent
326 jurisdiction as required by law.
327 3. A provider of wire, oral, or electronic communication
328 service, or an officer, employee, or agent thereof, or landlord,
329 custodian, or other person may not disclose the existence of any
330 interception or the device used to accomplish the interception
331 with respect to which the person has been served with a search
332 warrant furnished an order under this section and ss. 934.04
333 934.09, except as may otherwise be required by legal process and
334 then only after prior notice to the Governor, the Attorney
335 General, the statewide prosecutor, or a state attorney, as may
336 be appropriate. Any such disclosure renders such person liable
337 for the civil damages provided under s. 934.10, and such person
338 may be prosecuted under s. 934.43. An action may not be brought
339 against any provider of wire, oral, or electronic communication
340 service, or an officer, employee, or agent thereof, or landlord,
341 custodian, or other person for providing information,
342 facilities, or assistance in accordance with the terms of a
343 search warrant court order under this section and ss. 934.04
344 934.09.
345 (b) It is lawful under this section and ss. 934.04-934.09
346 for an officer, employee, or agent of the Federal Communications
347 Commission, in the normal course of his or her employment and in
348 discharge of the monitoring responsibilities exercised by the
349 commission in the enforcement of 47 U.S.C. chapter 5, to
350 intercept a wire, oral, or electronic communication transmitted
351 by radio or to disclose or use the information thereby obtained.
352 (c) It is lawful under this section and ss. 934.04-934.09
353 for an investigative or law enforcement officer or a person
354 acting under the direction of an investigative or law
355 enforcement officer to intercept a wire, oral, or electronic
356 communication when such person is a party to the communication
357 or one of the parties to the communication has given prior
358 consent to such interception and the purpose of such
359 interception is to obtain evidence of a criminal act.
360 (d) It is lawful under this section and ss. 934.04-934.09
361 for a person to intercept a wire, oral, or electronic
362 communication when all of the parties to the communication have
363 given prior consent to such interception.
364 (e) It is unlawful to intercept any wire, oral, or
365 electronic communication for the purpose of committing any
366 criminal act.
367 (f) It is lawful under this section and ss. 934.04-934.09
368 for an employee of a telephone company to intercept a wire
369 communication for the sole purpose of tracing the origin of such
370 communication when the interception is requested by the
371 recipient of the communication and the recipient alleges that
372 the communication is obscene, harassing, or threatening in
373 nature. The individual conducting the interception shall notify
374 local police authorities within 48 hours after the time of the
375 interception.
376 (g) It is lawful under this section and ss. 934.04-934.09
377 for an employee of:
378 1. An ambulance service licensed pursuant to s. 401.25, a
379 fire station employing firefighters as defined by s. 633.102, a
380 public utility, a law enforcement agency as defined by s.
381 934.02(10), or any other entity with published emergency
382 telephone numbers;
383 2. An agency operating an emergency telephone number “911”
384 system established pursuant to s. 365.171; or
385 3. The central abuse hotline operated under s. 39.101
386
387 to intercept and record incoming wire communications; however,
388 such employee may intercept and record incoming wire
389 communications on designated “911” telephone numbers and
390 published nonemergency telephone numbers staffed by trained
391 dispatchers at public safety answering points only. It is also
392 lawful for such employee to intercept and record outgoing wire
393 communications to the numbers from which such incoming wire
394 communications were placed when necessary to obtain information
395 required to provide the emergency services being requested. For
396 the purpose of this paragraph, the term “public utility” has the
397 same meaning as provided in s. 366.02 and includes a person,
398 partnership, association, or corporation now or hereafter owning
399 or operating equipment or facilities in the state for conveying
400 or transmitting messages or communications by telephone or
401 telegraph to the public for compensation.
402 (h) It is lawful shall not be unlawful under this section
403 and ss. 934.04-934.09 for any person:
404 1. To intercept or access an electronic communication made
405 through an electronic communication system that is configured so
406 that such electronic communication is readily accessible to the
407 general public.
408 2. To intercept any radio communication that which is
409 transmitted:
410 a. By any station for the use of the general public, or
411 that relates to ships, aircraft, vehicles, or persons in
412 distress;
413 b. By any governmental, law enforcement, civil defense,
414 private land mobile, or public safety communications system,
415 including any police or fire communications system, readily
416 accessible to the general public;
417 c. By a station operating on an authorized frequency within
418 the bands allocated to the amateur, citizens band, or general
419 mobile radio services; or
420 d. By any marine or aeronautical communications system.
421 3. To engage in any conduct that which:
422 a. Is prohibited by s. 633 of the Communications Act of
423 1934; or
424 b. Is excepted from the application of s. 705(a) of the
425 Communications Act of 1934 by s. 705(b) of that act.
426 4. To intercept any wire or electronic communication the
427 transmission of which is causing harmful interference to any
428 lawfully operating station of consumer electronic equipment to
429 the extent necessary to identify the source of such
430 interference.
431 5. To intercept, if such person is another user of the same
432 frequency, any radio communication that is not scrambled or
433 encrypted made through a system that utilizes frequencies
434 monitored by individuals engaged in the provision or the use of
435 such system.
436 6. To intercept a satellite transmission that is not
437 scrambled or encrypted and that is transmitted:
438 a. To a broadcasting station for purposes of retransmission
439 to the general public; or
440 b. As an audio subcarrier intended for redistribution to
441 facilities open to the public, but not including data
442 transmissions or telephone calls, when such interception is not
443 for the purposes of direct or indirect commercial advantage or
444 private financial gain.
445 7. To intercept and privately view a private satellite
446 video communication that is not scrambled or encrypted or to
447 intercept a radio communication that is transmitted on
448 frequencies allocated under subpart D of part 74 of the rules of
449 the Federal Communications Commission that is not scrambled or
450 encrypted, if such interception is not for a tortious or illegal
451 purpose or for purposes of direct or indirect commercial
452 advantage or private commercial gain.
453 (i) It is lawful shall not be unlawful under this section
454 and ss. 934.04-934.09:
455 1. To use a pen register or a trap and trace device as
456 authorized under ss. 934.31-934.34 or under federal law; or
457 2. For a provider of electronic communication service to
458 record the fact that a wire or electronic communication was
459 initiated or completed in order to protect such provider,
460 another provider furnishing service toward the completion of the
461 wire or electronic communication, or a user of that service,
462 from fraudulent, unlawful, or abusive use of such service.
463 (j) It is lawful not unlawful under this section and ss.
464 934.04-934.09 for a person acting under color of law to
465 intercept the wire or electronic communications of a computer
466 trespasser which are transmitted to, through, or from a
467 protected computer if:
468 1. The owner or operator of the protected computer
469 authorizes the interception of the communications of the
470 computer trespasser;
471 2. The person acting under color of law is lawfully engaged
472 in an investigation;
473 3. The person acting under color of law has reasonable
474 grounds to believe that the contents of the communications of
475 the computer trespasser will be relevant to the investigation;
476 and
477 4. The interception does not acquire communications other
478 than those transmitted to, through, or from the computer
479 trespasser.
480 (k) It is lawful under this section and ss. 934.04-934.09
481 for a child under 18 years of age to intercept and record an
482 oral communication if the child is a party to the communication
483 and has reasonable grounds to believe that recording the
484 communication will capture a statement by another party to the
485 communication that the other party intends to commit, is
486 committing, or has committed an unlawful sexual act or an
487 unlawful act of physical force or violence against the child.
488 (l) It is lawful under this section and ss. 934.04-934.09
489 for a person who is protected under an active temporary or final
490 injunction for repeat violence, sexual violence, or dating
491 violence under s. 784.046; stalking under s. 784.0485; domestic
492 violence under s. 741.30; or any other court-imposed prohibition
493 of conduct toward the person to intercept and record a wire,
494 oral, or electronic communication received in violation of such
495 injunction or court order. A recording authorized under this
496 paragraph may be provided to a law enforcement agency, an
497 attorney, or a court for the purpose of evidencing a violation
498 of an injunction or court order if the subject of the injunction
499 or court order prohibiting contact has been served the
500 injunction or is on notice that the conduct is prohibited. A
501 recording authorized under this paragraph may not be otherwise
502 disseminated or shared.
503 Section 6. Section 934.06, Florida Statutes, is amended to
504 read:
505 934.06 Prohibition of use as evidence of intercepted wire
506 or oral communications; content of cellular phone, microphone
507 enabled household device, or portable electronic communication
508 device; exceptions exception.—Whenever any wire or oral
509 communication has been intercepted, or when the content of a
510 cellular phone, microphone-enabled household device, or portable
511 electronic communication device is obtained without a search
512 warrant supported by probable cause, no part of the contents of
513 such communication or content and no evidence derived therefrom
514 may be received in evidence in any trial, hearing, or other
515 proceeding in or before any court, grand jury, department,
516 officer, agency, regulatory body, legislative committee, or
517 other authority of the state, or a political subdivision
518 thereof, if the disclosure of that information would be in
519 violation of this chapter. The prohibition of use as evidence
520 provided in this section does not apply in cases of prosecution
521 for criminal interception in violation of the provisions of this
522 chapter, or in cases in which the content of a cellular phone,
523 microphone-enabled household device, or portable electronic
524 communication device is lawfully obtained under circumstances in
525 which a search warrant is not required.
526 Section 7. Subsections (1) and (2) of section 934.07,
527 Florida Statutes, are amended to read:
528 934.07 Authorization for interception of wire, oral, or
529 electronic communications.—
530 (1) The Governor, the Attorney General, the statewide
531 prosecutor, or any state attorney may authorize an application
532 to a judge of competent jurisdiction for, and such judge may
533 issue a search warrant as required by law grant in conformity
534 with ss. 934.03-934.09 an order authorizing or approving the
535 interception of, wire, oral, or electronic communications by:
536 (a) The Department of Law Enforcement or any law
537 enforcement agency as defined in s. 934.02 having responsibility
538 for the investigation of the offense as to which the application
539 is made when such interception may provide or has provided
540 evidence of the commission of the offense of murder, kidnapping,
541 aircraft piracy, arson, gambling, robbery, burglary, theft,
542 dealing in stolen property, criminal usury, bribery, or
543 extortion; any felony violation of ss. 790.161-790.166,
544 inclusive; any violation of s. 787.06; any violation of chapter
545 893; any violation of the provisions of the Florida Anti-Fencing
546 Act; any violation of chapter 895; any violation of chapter 896;
547 any violation of chapter 815; any violation of chapter 847; any
548 violation of s. 827.071; any violation of s. 944.40; or any
549 conspiracy or solicitation to commit any violation of the laws
550 of this state relating to the crimes specifically enumerated in
551 this paragraph.
552 (b) The Department of Law Enforcement, together with other
553 assisting personnel as authorized and requested by the
554 department under s. 934.09(5), for the investigation of the
555 offense as to which the application is made when such
556 interception may provide or has provided evidence of the
557 commission of any offense that may be an act of terrorism or in
558 furtherance of an act of terrorism or evidence of any conspiracy
559 or solicitation to commit any such violation.
560 (2)(a) If, during the course of an interception of
561 communications by a law enforcement agency as authorized under
562 paragraph (1)(a), the law enforcement agency finds that the
563 intercepted communications may provide or have provided evidence
564 of the commission of any offense that may be an act of terrorism
565 or in furtherance of an act of terrorism, or evidence of any
566 conspiracy or solicitation to commit any such violation, the law
567 enforcement agency shall promptly notify the Department of Law
568 Enforcement and apprise the department of the contents of the
569 intercepted communications. The agency notifying the department
570 may continue its previously authorized interception with
571 appropriate minimization, as applicable, and may otherwise
572 assist the department as provided in this section.
573 (b) Upon its receipt of information of the contents of an
574 intercepted communications from a law enforcement agency, the
575 Department of Law Enforcement shall promptly review the
576 information to determine whether the information relates to an
577 actual or anticipated act of terrorism as defined in this
578 section. If, after reviewing the contents of the intercepted
579 communications, there is probable cause that the contents of the
580 intercepted communications meet the criteria of paragraph
581 (1)(b), the Department of Law Enforcement may make application
582 for the interception of wire, oral, or electronic communications
583 consistent with paragraph (1)(b). The department may make an
584 independent new application for interception based on the
585 contents of the intercepted communications. Alternatively, the
586 department may request the law enforcement agency that provided
587 the information to join with the department in seeking a new
588 search warrant as required by law or an amendment of the
589 original interception search warrant order, or may seek
590 additional authority to continue intercepting communications
591 under the direction of the department. In carrying out its
592 duties under this section, the department may use the provisions
593 for an emergency interception provided in s. 934.09(7) if
594 applicable under statutory criteria.
595 Section 8. Section 934.09, Florida Statutes, is amended to
596 read:
597 934.09 Procedure for interception of wire, oral, or
598 electronic communications.—
599 (1) Each application for a search warrant an order
600 authorizing or approving the interception of a wire, oral, or
601 electronic communication under ss. 934.03-934.09 shall be made
602 in writing upon oath or affirmation to a judge of competent
603 jurisdiction and shall state the applicant’s authority to make
604 such application. Each application shall include the following
605 information:
606 (a) The identity of the investigative or law enforcement
607 officer making the application and the officer authorizing the
608 application.
609 (b) A full and complete statement of the facts and
610 circumstances relied upon by the applicant to justify his or her
611 belief that a search warrant an order should be issued,
612 including:
613 1. Details as to the particular offense that has been, is
614 being, or is about to be committed.
615 2. Except as provided in subsection (11), a particular
616 description of the nature and location of the facilities from
617 which, or the place where, the communications are to be
618 intercepted.
619 3. A particular description of the type of communications
620 sought to be intercepted.
621 4. The identity of the person, if known, committing the
622 offense and whose communications are to be intercepted.
623 (c) A full and complete statement as to whether or not
624 other investigative procedures have been tried and failed or why
625 they reasonably appear to be unlikely to succeed if tried or to
626 be too dangerous.
627 (d) A statement of the period of time for which the
628 interception is required to be maintained and, if the nature of
629 the investigation is such that the authorization for
630 interception should not automatically terminate when the
631 described type of communication has been first obtained, a
632 particular description of facts establishing probable cause to
633 believe that additional communications of the same type will
634 occur thereafter.
635 (e) A full and complete statement of the facts concerning
636 all previous applications known to the individual authorizing
637 and making the application, made to any judge for authorization
638 to intercept, or for approval of interceptions of, wire, oral,
639 or electronic communications involving any of the same persons,
640 facilities, or places specified in the application, and the
641 action taken by the judge on each such application.
642 (f) When the application is for the extension of a search
643 warrant an order, a statement setting forth the results thus far
644 obtained from the interception or a reasonable explanation of
645 the failure to obtain such results.
646 (2) The judge may require the applicant to furnish
647 additional testimony or documentary evidence in support of the
648 application.
649 (3) Upon such application, the judge may authorize a search
650 warrant enter an ex parte order, as requested or as modified,
651 authorizing or approving interception of wire, oral, or
652 electronic communications within the territorial jurisdiction of
653 the court in which the judge is sitting, and outside such
654 jurisdiction but within the State of Florida in the case of a
655 mobile interception device authorized by the judge within such
656 jurisdiction, if the judge determines on the basis of the facts
657 submitted by the applicant that:
658 (a) There is probable cause for belief that an individual
659 is committing, has committed, or is about to commit an offense
660 as provided in s. 934.07.
661 (b) There is probable cause for belief that particular
662 communications concerning that offense will be obtained through
663 such interception.
664 (c) Normal investigative procedures have been tried and
665 have failed or reasonably appear to be unlikely to succeed if
666 tried or to be too dangerous.
667 (d) Except as provided in subsection (11), there is
668 probable cause for belief that the facilities from which, or the
669 place where, the wire, oral, or electronic communications are to
670 be intercepted are being used, or are about to be used, in
671 connection with the commission of such offense, or are leased
672 to, listed in the name of, or commonly used by such person.
673 (4) Each search warrant order authorizing or approving the
674 interception of any wire, oral, or electronic communication
675 shall specify:
676 (a) The identity of the person, if known, whose
677 communications are to be intercepted.
678 (b) The nature and location of the communications
679 facilities as to which, or the place where, authority to
680 intercept is granted.
681 (c) A particular description of the type of communication
682 sought to be intercepted and a statement of the particular
683 offense to which it relates.
684 (d) The identity of the agency authorized to intercept the
685 communications and of the person authorizing the application.
686 (e) The period of time during which such interception is
687 authorized, including a statement as to whether or not the
688 interception shall automatically terminate when the described
689 communication has been first obtained.
690
691 A search warrant An order authorizing the interception of a
692 wire, oral, or electronic communication shall, upon the request
693 of the applicant, direct that a provider of wire or electronic
694 communication service, landlord, custodian, or other person
695 shall furnish the applicant forthwith all information,
696 facilities, and technical assistance necessary to accomplish the
697 interception unobtrusively and with a minimum of interference
698 with the services that such service provider, landlord,
699 custodian, or person is according the person whose
700 communications are to be intercepted. The obligation of a
701 provider of wire, oral, or electronic communication service
702 under such a search warrant an order may include, but is not
703 limited to, conducting an in-progress trace during an
704 interception, or providing other assistance to support the
705 investigation as may be specified in the search warrant order.
706 Any provider of wire or electronic communication service,
707 landlord, custodian, or other person furnishing such facilities
708 or technical assistance shall be compensated therefor by the
709 applicant for reasonable expenses incurred in providing such
710 facilities or assistance.
711 (5) A search warrant No order entered under this section
712 may not authorize or approve the interception of any wire, oral,
713 or electronic communication for any period longer than is
714 necessary to achieve the objective of the authorization or in
715 any event longer than 30 days. Such 30-day period begins on the
716 day on which the agent or officer of the law enforcement agency
717 first begins to conduct an interception under the search warrant
718 order or 10 days after the search warrant is approved order is
719 entered, whichever occurs earlier. Extensions of a search
720 warrant an order may be granted but only upon application for an
721 extension made in accordance with subsection (1) and upon the
722 court making the findings required by subsection (3). The period
723 of extension shall be no longer than the authorizing judge deems
724 necessary to achieve the purposes for which it was granted and
725 in no event for longer than 30 days. Every search warrant order
726 and extension thereof shall contain a provision that the
727 authorization to intercept shall be executed as soon as
728 practicable, shall be conducted in such a way as to minimize the
729 interception of communications not otherwise subject to
730 interception under ss. 934.03-934.09, and must terminate upon
731 attainment of the authorized objective or in any event in 30
732 days. If the intercepted communication is in code or foreign
733 language and an expert in that foreign language or code is not
734 reasonably available during the interception period,
735 minimization may be accomplished as soon as practicable after
736 such interception. An interception under ss. 934.03-934.09 may
737 be conducted in whole or in part by government personnel or by
738 an individual operating under a contract with the government,
739 acting under the supervision of an agent or officer of the law
740 enforcement agency authorized to conduct the interception.
741 (6) Whenever a search warrant an order authorizing
742 interception is granted entered pursuant to ss. 934.03-934.09,
743 the search warrant order may require reports to be made to the
744 judge who issued the search warrant order showing what progress
745 has been made toward achievement of the authorized objective and
746 the need for continued interception. Such reports shall be made
747 at such intervals as the judge may require.
748 (7) Notwithstanding any other provision of this chapter,
749 any investigative or law enforcement officer specially
750 designated by the Governor, the Attorney General, the statewide
751 prosecutor, or a state attorney acting under this chapter, who
752 reasonably determines that:
753 (a) An emergency exists that:
754 1. Involves immediate danger of death or serious physical
755 injury to any person, the danger of escape of a prisoner, or
756 conspiratorial activities threatening the security interest of
757 the nation or state; and
758 2. Requires that a wire, oral, or electronic communication
759 be intercepted before a search warrant an order authorizing such
760 interception can, with due diligence, be obtained; and
761 (b) There are grounds upon which a search warrant an order
762 could be entered under this chapter to authorize such
763 interception,
764
765 may intercept such wire, oral, or electronic communication if an
766 application for a search warrant an order approving the
767 interception is made in accordance with this section within 48
768 hours after the interception has occurred or begins to occur. In
769 the absence of a search warrant an order, such interception
770 shall immediately terminate when the communication sought is
771 obtained or when the application for the search warrant order is
772 denied, whichever is earlier. If such application for approval
773 is denied, or in any other case in which the interception is
774 terminated without a search warrant an order having been issued,
775 the contents of any wire, oral, or electronic communication
776 intercepted shall be treated as having been obtained in
777 violation of s. 934.03(4), and an inventory shall be served as
778 provided for in paragraph (8)(e) on the person named in the
779 application.
780 (8)(a) The contents of any wire, oral, or electronic
781 communication intercepted by any means authorized by ss. 934.03
782 934.09 shall, if possible, be recorded on tape or wire or other
783 comparable device. The recording of the contents of any wire,
784 oral, or electronic communication under this subsection shall be
785 kept in such a way as will protect the recording from editing or
786 other alterations. Immediately upon the expiration of the period
787 of the search warrant order, or extensions thereof, such
788 recordings shall be made available to the judge approving the
789 search warrant issuing such order and sealed under his or her
790 directions. Custody of the recordings shall be wherever the
791 judge orders. They may shall not be destroyed except upon an
792 order of the issuing or denying judge, or that judge’s successor
793 in office, and in any event shall be kept for 10 years.
794 Duplicate recordings may be made for use or disclosure pursuant
795 to the provisions of s. 934.08(1) and (2) for investigations, or
796 for purposes of discovery as required by law.
797 (b) The presence of the seal provided for by this
798 subsection, or a satisfactory explanation for the absence
799 thereof, shall be a prerequisite for the use or disclosure of
800 the contents of any wire, oral, or electronic communication or
801 evidence derived therefrom under s. 934.08(3), as required by
802 federal law.
803 (c) Applications made and search warrants orders granted
804 under ss. 934.03-934.09 shall be sealed by the judge. Custody of
805 the applications and search warrants orders shall be wherever
806 the judge directs. As required by federal law, such applications
807 and search warrants must orders shall be disclosed only for
808 purposes of discovery or upon a showing of good cause before a
809 judge of competent jurisdiction and may shall not be destroyed
810 except on order of the issuing or denying judge, or that judge’s
811 successor in office, and in any event shall be kept for 10
812 years.
813 (d) Any violation of the provisions of this subsection may
814 be punished as contempt of the issuing or denying judge.
815 (e) Within a reasonable time but not later than 90 days
816 after the termination of the period of a search warrant, an
817 order or extensions thereof, the issuing or denying judge shall
818 cause to be served on the persons named in the search warrant
819 order or the application, and such other parties to intercepted
820 communications as the judge may determine in his or her
821 discretion to be in the interest of justice, an inventory which
822 shall include notice of:
823 1. The fact of the approval of the search warrant entry of
824 the order or the application.
825 2. The date of the approval of the search warrant entry and
826 the period of authorized, approved, or disapproved interception,
827 or the denial of the application.
828 3. The fact that during the period wire, oral, or
829 electronic communications were or were not intercepted.
830
831 The judge, upon the filing of a motion, may make available to
832 such person or the person’s counsel for inspection such portions
833 of the intercepted communications, applications, and search
834 warrants orders as the judge determines to be in the interest of
835 justice. On an ex parte showing of good cause to a judge of
836 competent jurisdiction, the serving of the inventory required by
837 this paragraph may be postponed.
838 (9) As required by federal law, The contents of any
839 intercepted wire, oral, or electronic communication or evidence
840 derived therefrom may shall not be received in evidence or
841 otherwise disclosed in any trial, hearing, or other proceeding
842 unless each party, not less than 10 days before the trial,
843 hearing, or proceeding, has been furnished with a copy of the
844 search warrant court order and accompanying application under
845 which the interception was authorized or approved. This 10-day
846 period may be waived by the judge if he or she finds that it was
847 not possible to furnish the party with the above information 10
848 days before the trial, hearing, or proceeding and that the party
849 will not be prejudiced by the delay in receiving such
850 information.
851 (10)(a) An Any aggrieved person before or during in any
852 trial, hearing, or proceeding in or before any court,
853 department, officer, agency, regulatory body, or other authority
854 may move to suppress the contents of any intercepted wire, oral,
855 or electronic communication, or evidence derived therefrom, on
856 the grounds that:
857 1. The communication was unlawfully intercepted;
858 2. The search warrant order of authorization or approval
859 under which it was intercepted is insufficient on its face; or
860 3. The interception was not made in conformity with the
861 search warrant order of authorization or approval.
862 (b) Except as otherwise provided in the applicable Florida
863 Rules of Criminal Procedure, in a criminal matter:
864 1. Such motion shall be made before the trial, hearing, or
865 proceeding unless there was no opportunity to make such motion
866 or the person was not aware of the grounds of the motion.
867 2. If the motion is granted, the contents of the
868 intercepted wire or oral communication, or evidence derived
869 therefrom, must shall be treated as having been obtained in
870 violation of ss. 934.03-934.09 and are not admissible as
871 evidence.
872 3. The judge, upon the filing of such motion by the
873 aggrieved person, may make available to the aggrieved person or
874 his or her counsel for inspection such portions of the
875 intercepted communication or evidence derived therefrom as the
876 judge determines to be in the interest of justice.
877 (c)(b) In addition to any other right to appeal, the state
878 shall have the right to appeal from an order granting a motion
879 to suppress made under paragraph (a) or the denial of an
880 application for a search warrant an order of approval if the
881 attorney certifies shall certify to the judge or other official
882 granting such motion or denying such application that the appeal
883 is not taken for purposes of delay. Such appeal shall be taken
884 within 30 days after the date the order was entered and shall be
885 diligently prosecuted.
886 (d)(c) The remedies and sanctions described in ss. 934.03
887 934.10 with respect to the interception of electronic
888 communications are the only judicial remedies and sanctions for
889 violations of those sections involving such communications.
890 (11) The requirements of subparagraph (1)(b)2. and
891 paragraph (3)(d) relating to the specification of the facilities
892 from which, or the place where, the communication is to be
893 intercepted do not apply if:
894 (a) In the case of an application with respect to the
895 interception of an oral communication:
896 1. The application is by an agent or officer of a law
897 enforcement agency and is approved by the Governor, the Attorney
898 General, the statewide prosecutor, or a state attorney.
899 2. The application contains a full and complete statement
900 as to why such specification is not practical and identifies the
901 person committing the offense and whose communications are to be
902 intercepted.
903 3. The judge finds that such specification is not
904 practical.
905 (b) In the case of an application with respect to a wire or
906 electronic communication:
907 1. The application is by an agent or officer of a law
908 enforcement agency and is approved by the Governor, the Attorney
909 General, the statewide prosecutor, or a state attorney.
910 2. The application identifies the person believed to be
911 committing the offense and whose communications are to be
912 intercepted and the applicant makes a showing that there is
913 probable cause to believe that the person’s actions could have
914 the effect of thwarting interception from a specified facility
915 or that the person whose communications are to be intercepted
916 has removed, or is likely to remove, himself or herself to
917 another judicial circuit within the state.
918 3. The judge finds that such showing has been adequately
919 made.
920 4. The search warrant order authorizing or approving the
921 interception is limited to interception only for such time as it
922 is reasonable to presume that the person identified in the
923 application is or was reasonably proximate to the instrument
924 through which such communication will be or was transmitted.
925
926 Consistent with this paragraph, a judge of competent
927 jurisdiction may authorize interception within this state,
928 whether the interception is within or outside the court’s
929 jurisdiction, if the application for the interception makes a
930 showing that some activity or conspiracy believed to be related
931 to, or in furtherance of, the criminal predicate for the
932 requested interception has occurred or will likely occur, or the
933 communication to be intercepted or expected to be intercepted is
934 occurring or will likely occur, in whole or in part, within the
935 jurisdiction of the court where the order is being sought.
936 (12) If an interception of a communication is to be carried
937 out pursuant to subsection (11), such interception may not begin
938 until the facilities from which, or the place where, the
939 communication is to be intercepted is ascertained by the person
940 implementing the interception search warrant order. A provider
941 of wire or electronic communications service that has received a
942 search warrant an order as provided under paragraph (11)(b) may
943 petition the court to modify or quash the search warrant order
944 on the ground that the interception cannot be performed in a
945 timely or reasonable fashion. The court, upon notice to the
946 state, shall decide such a petition expeditiously.
947 (13) Consistent with this section, a judge of competent
948 jurisdiction may authorize interception within this state,
949 regardless of whether the interception is within or outside the
950 court’s jurisdiction, if the application for the interception
951 makes a showing that some activity or conspiracy believed to be
952 related to, or in furtherance of, the criminal predicate for the
953 requested interception has occurred or will likely occur, or the
954 communication to be intercepted or expected to be intercepted is
955 occurring or will likely occur, in whole or in part, within the
956 jurisdiction of the court where the search warrant is being
957 sought.
958 Section 9. Subsections (1) and (2) of section 934.10,
959 Florida Statutes, are amended to read:
960 934.10 Civil remedies.—
961 (1) Any person whose wire, oral, or electronic
962 communication is intercepted, disclosed, or used in violation of
963 ss. 934.03-934.09 shall have a civil cause of action against any
964 person or entity who intercepts, discloses, or uses, or procures
965 any other person or entity to intercept, disclose, or use, such
966 communications and is shall be entitled to recover from any such
967 person or entity that which engaged in that violation any such
968 relief as may be appropriate relief, including all of the
969 following:
970 (a) Preliminary or equitable or declaratory relief as may
971 be appropriate.;
972 (b) Actual damages, but not less than liquidated damages
973 computed at the rate of $100 a day for each day of violation or
974 $1,000, whichever is higher.;
975 (c) Punitive damages.; and
976 (d) A reasonable attorney’s fee and other litigation costs
977 reasonably incurred.
978 (2) A good faith reliance on any of the following
979 constitutes a complete defense to any civil, criminal, or
980 administrative action arising out of such conduct under the laws
981 of this state:
982 (a) A search warrant court order, subpoena, or legislative
983 authorization as provided for in ss. 934.03-934.09.,
984 (b) A request of an investigative or law enforcement
985 officer under s. 934.09(7)., or
986 (c) A good faith determination that Florida or federal law,
987 other than 18 U.S.C. s. 2511(2)(d), authorized permitted the
988 conduct complained of
989
990 shall constitute a complete defense to any civil or criminal, or
991 administrative action arising out of such conduct under the laws
992 of this state.
993 Section 10. Section 934.21, Florida Statutes, is amended to
994 read:
995 934.21 Unlawful access to stored communications;
996 penalties.—
997 (1) Except as provided in subsection (3), whoever:
998 (a) Intentionally accesses without authorization a facility
999 through which an electronic communication service is provided,
1000 or
1001 (b) Intentionally exceeds an authorization to access such
1002 facility,
1003
1004 and thereby obtains, alters, or prevents authorized access to a
1005 wire or electronic communication while it is in electronic
1006 storage in such system shall be punished as provided in
1007 subsection (2).
1008 (2) The punishment for an offense under subsection (1) is
1009 as follows:
1010 (a) If the offense is committed for purposes of commercial
1011 advantage, malicious destruction or damage, or private
1012 commercial gain, the person is:
1013 1. In the case of a first offense under this subsection,
1014 commits guilty of a misdemeanor of the first degree, punishable
1015 as provided in s. 775.082, s. 775.083, or s. 934.41.
1016 2. In the case of any subsequent offense under this
1017 subsection, commits guilty of a felony of the third degree,
1018 punishable as provided in s. 775.082, s. 775.083, s. 775.084, or
1019 s. 934.41.
1020 (b) In any other case, the person commits is guilty of a
1021 misdemeanor of the second degree, punishable as provided in s.
1022 775.082 or s. 775.083.
1023 (3) Subsection (1) does not apply with respect to conduct
1024 authorized:
1025 (a) By the person or entity providing a wire, an oral, or
1026 an electronic communications service, including through cellular
1027 phones, microphone-enabled household devices, or portable
1028 electronic communication devices;
1029 (b) By a user of a wire, an oral, or an electronic
1030 communications service, including through cellular phones,
1031 microphone-enabled household devices, or portable electronic
1032 communication devices, with respect to a communication of or
1033 intended for that user; or
1034 (c) In s. 934.09, s. 934.23, or s. 934.24;
1035 (d) In chapter 933; or
1036 (e) For accessing for a legitimate business purpose
1037 information that is not personally identifiable or that has been
1038 collected in a way that prevents identification of the user of
1039 the device.
1040 Section 11. Section 934.42, Florida Statutes, is amended to
1041 read:
1042 934.42 Mobile tracking device and location tracking
1043 authorization.—
1044 (1) As used in this section, the term:
1045 (a) “Historical location data” means historical precise
1046 global positioning system location data in the possession of a
1047 provider.
1048 (b) “Mobile tracking device” means an electronic or a
1049 mechanical device that tracks the movement of a person or an
1050 object.
1051 (c) “Real-time location tracking” means:
1052 1. The installation and use of a mobile tracking device on
1053 the object to be tracked;
1054 2. The acquisition of real-time cell-site location data; or
1055 3. The acquisition of real-time precise global positioning
1056 system location data.
1057 (2)(1) An investigative or law enforcement officer may make
1058 application to a judge of competent jurisdiction for a search
1059 warrant an order authorizing or approving real-time location
1060 tracking or the acquisition of historical location data in the
1061 possession of the provider the installation and use of a mobile
1062 tracking device.
1063 (3)(2) An application made under subsection (2) (1) of this
1064 section must include:
1065 (a) A statement of the identity of the applicant and the
1066 identity of the law enforcement agency conducting the
1067 investigation.
1068 (b) A statement setting forth a reasonable period of time
1069 during which the mobile tracking device may be used or the
1070 location data may be obtained in real time, not to exceed 45
1071 days from the date on which the search warrant is issued. The
1072 court may, for good cause, grant one or more extensions for a
1073 reasonable period of time, not to exceed 45 days each. When
1074 seeking historical location data, the applicant must specify a
1075 date range for the data sought certification by the applicant
1076 that the information likely to be obtained is relevant to an
1077 ongoing criminal investigation being conducted by the
1078 investigating agency.
1079 (c) A statement of the offense to which the information
1080 likely to be obtained relates.
1081 (d) A statement as to whether it may be necessary to use
1082 and monitor the mobile tracking device outside the jurisdiction
1083 of the court from which authorization is being sought.
1084 (4)(3) Upon application made as provided under subsection
1085 (3), and (2), the court, if the court it finds both probable
1086 cause that the certification and that the statements required by
1087 subsection (3) (2) have been made in the application, it must
1088 grant a search warrant shall enter an ex parte order authorizing
1089 real-time location tracking or the acquisition of historical
1090 location data the installation and use of a mobile tracking
1091 device. Such search warrant order may authorize the location
1092 tracking use of the device within the jurisdiction of the court
1093 and outside that jurisdiction but within the State of Florida if
1094 the location tracking device is initiated installed within the
1095 jurisdiction of the court. The search warrant must command the
1096 investigative or law enforcement officer to complete any
1097 initiation of the location tracking or execution of the search
1098 warrant for historical location data authorized by the search
1099 warrant within a specified period of time not to exceed 10
1100 calendar days.
1101 (5)(4) A court may not require greater specificity or
1102 additional information beyond that which is required by law and
1103 this section as a requisite for issuing a search warrant an
1104 order.
1105 (6) Within 10 days after the timeframe specified in
1106 paragraph (3)(b) has ended, the investigative or law enforcement
1107 officer executing a search warrant must return the search
1108 warrant to the issuing judge. When the search warrant authorizes
1109 the acquisition of historical location data, the investigative
1110 or law enforcement officer executing the search warrant must
1111 return the search warrant to the issuing judge within 10 days
1112 after receipt of the records. The investigative or law
1113 enforcement officer may do so by reliable electronic means.
1114 (7) Within 10 days after the timeframe specified in
1115 paragraph (3)(b) has ended, the investigative or law enforcement
1116 officer executing a search warrant shall serve a copy of the
1117 search warrant on the person who, or whose property, was
1118 tracked. When the search warrant authorizes the acquisition of
1119 historical location data, the investigative or law enforcement
1120 officer executing the search warrant must serve a copy of the
1121 search warrant on the person whose data was obtained within 10
1122 days after receipt of the records. Service may be accomplished
1123 by delivering a copy to the person who, or whose property, was
1124 tracked or whose data was obtained or by leaving a copy at the
1125 person’s residence or usual place of abode with an individual of
1126 suitable age and discretion who resides at that location and by
1127 mailing a copy to the person’s last known address. Upon a
1128 showing of good cause to a court of competent jurisdiction, the
1129 court may grant one or more postponements of this notice for a
1130 period of 90 days each.
1131 (8)(5) The standards established by Florida courts and the
1132 United States Supreme Court for the installation, use, or and
1133 monitoring of mobile tracking devices and the acquisition of
1134 location data shall apply to the installation, use, or
1135 monitoring and use of any device and the acquisition of location
1136 data as authorized by this section.
1137 (6) As used in this section, a “tracking device” means an
1138 electronic or mechanical device which permits the tracking of
1139 the movement of a person or object.
1140 (9)(a) Notwithstanding any other provision of this chapter,
1141 any investigative or law enforcement officer specially
1142 designated by the Governor, the Attorney General, the statewide
1143 prosecutor, or a state attorney acting pursuant to this chapter
1144 who reasonably determines that:
1145 1. An emergency exists which:
1146 a. Involves immediate danger of death or serious physical
1147 injury to any person or the danger of escape of a prisoner; and
1148 b. Requires real-time location tracking before a search
1149 warrant authorizing such tracking can, with due diligence, be
1150 obtained; and
1151 2. There are grounds upon which a search warrant could be
1152 issued under this chapter to authorize such tracking,
1153
1154 may engage in real-time location tracking if, within 48 hours
1155 after the tracking has occurred or begins to occur, a search
1156 warrant approving the tracking is issued in accordance with this
1157 section.
1158 (b) In the absence of an authorizing search warrant, such
1159 tracking must immediately terminate when the information sought
1160 is obtained, when the application for the search warrant is
1161 denied, or when 48 hours have lapsed since the tracking began,
1162 whichever is earlier.
1163 Section 12. For the purpose of incorporating the amendments
1164 made by this act to sections 934.03 and 934.07, Florida
1165 Statutes, in references thereto, paragraph (b) of subsection (2)
1166 of section 934.22, Florida Statutes, is reenacted to read:
1167 934.22 Voluntary disclosure of customer communications or
1168 records.—
1169 (2) A provider described in subsection (1) may divulge the
1170 contents of a communication:
1171 (b) As otherwise authorized in s. 934.03(2)(a), s. 934.07,
1172 or s. 934.23.
1173 Section 13. For the purpose of incorporating the amendments
1174 made by this act to sections 934.09 and 934.21, Florida
1175 Statutes, in references thereto, subsections (1) and (4) of
1176 section 934.27, Florida Statutes, are reenacted to read:
1177 934.27 Civil action: relief; damages; defenses.—
1178 (1) Except as provided in s. 934.23(5), any provider of
1179 electronic communication service, or subscriber or customer
1180 thereof, aggrieved by any violation of ss. 934.21-934.28 in
1181 which the conduct constituting the violation is engaged in with
1182 a knowing or intentional state of mind may, in a civil action,
1183 recover from the person or entity which engaged in that
1184 violation such relief as is appropriate.
1185 (4) A good faith reliance on any of the following is a
1186 complete defense to any civil or criminal action brought under
1187 ss. 934.21-934.28:
1188 (a) A court warrant or order, a subpoena, or a statutory
1189 authorization, including, but not limited to, a request of an
1190 investigative or law enforcement officer to preserve records or
1191 other evidence, as provided in s. 934.23(7).
1192 (b) A request of an investigative or law enforcement
1193 officer under s. 934.09(7).
1194 (c) A good faith determination that s. 934.03(3) permitted
1195 the conduct complained of.
1196 Section 14. For the purpose of incorporating the amendment
1197 made by this act to section 934.21, Florida Statutes, in a
1198 reference thereto, subsection (6) of section 934.23, Florida
1199 Statutes, is reenacted to read:
1200 934.23 Required disclosure of customer communications or
1201 records.—
1202 (6) No cause of action shall lie in any court against any
1203 provider of wire or electronic communication service, its
1204 officers, employees, agents, or other specified persons for
1205 providing information, facilities, or assistance in accordance
1206 with the terms of a court order, warrant, subpoena, or
1207 certification under ss. 934.21-934.28.
1208 Section 15. For the purpose of incorporating the amendment
1209 made by this act to section 934.21, Florida Statutes, in
1210 references thereto, subsections (6) and (7) of section 934.24,
1211 Florida Statutes, are reenacted to read:
1212 934.24 Backup preservation; customer notification;
1213 challenges by customer.—
1214 (6) Within 14 days after notice by the investigative or law
1215 enforcement officer to the subscriber or customer under
1216 subsection (2), the subscriber or customer may file a motion to
1217 quash the subpoena or vacate the court order seeking contents of
1218 electronic communications, with copies served upon the
1219 investigative or law enforcement officer and with written notice
1220 of such challenge to the service provider. A motion to vacate a
1221 court order must be filed in the court which issued the order. A
1222 motion to quash a subpoena must be filed in the circuit court in
1223 the circuit from which the subpoena issued. Such motion or
1224 application must contain an affidavit or sworn statement:
1225 (a) Stating that the applicant is a subscriber or customer
1226 of the service from which the contents of electronic
1227 communications maintained for her or him have been sought, and
1228 (b) Stating the applicant’s reasons for believing that the
1229 records sought are not relevant to a legitimate law enforcement
1230 inquiry or that there has not been substantial compliance with
1231 the provisions of ss. 934.21-934.28 in some other respect.
1232 (7) Except as otherwise obtained under paragraph (3)(a),
1233 service must be made under this section upon an investigative or
1234 law enforcement officer by delivering or mailing by registered
1235 or certified mail a copy of the papers to the person, office, or
1236 department specified in the notice which the subscriber or
1237 customer has received pursuant to ss. 934.21-934.28. For the
1238 purposes of this subsection, the term “delivering” shall be
1239 construed in accordance with the definition of “delivery” as
1240 provided in Rule 1.080, Florida Rules of Civil Procedure.
1241 Section 16. For the purpose of incorporating the amendment
1242 made by this act to section 934.21, Florida Statutes, in a
1243 reference thereto, subsection (5) of section 934.25, Florida
1244 Statutes, is reenacted to read:
1245 934.25 Delayed notice.—
1246 (5) Upon the expiration of the period of delay of
1247 notification under subsection (1) or subsection (4), the
1248 investigative or law enforcement officer must serve upon or
1249 deliver by registered or first-class mail to the subscriber or
1250 customer a copy of the process or request together with notice
1251 which:
1252 (a) States with reasonable specificity the nature of the
1253 law enforcement inquiry, and
1254 (b) Informs the subscriber or customer:
1255 1. That information maintained for such subscriber or
1256 customer by the service provider named in the process or request
1257 was supplied to or requested by the investigative or law
1258 enforcement officer and the date on which such information was
1259 so supplied or requested.
1260 2. That notification of such subscriber or customer was
1261 delayed.
1262 3. What investigative or law enforcement officer or what
1263 court made the certification or determination pursuant to which
1264 that delay was made.
1265 4. Which provision of ss. 934.21-934.28 allowed such delay.
1266 Section 17. For the purpose of incorporating the amendment
1267 made by this act to section 934.21, Florida Statutes, in a
1268 reference thereto, section 934.28, Florida Statutes, is
1269 reenacted to read:
1270 934.28 Exclusivity of remedies and sanctions.—The remedies
1271 and sanctions described in ss. 934.21-934.27 are the only
1272 judicial remedies and sanctions for violation of those sections.
1273 Section 18. This act shall take effect July 1, 2022.
