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House Bill 1439

House Bill hb1439

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    Florida House of Representatives - 2002                HB 1439

        By Representative Gelber






  1                      A bill to be entitled

  2         An act relating to the interception of

  3         communications; amending s. 934.02, F.S.;

  4         revising definitions; including wire

  5         communications within the meaning of an

  6         electronic communications system; redefining

  7         the terms "pen register" and "trap and trace

  8         device"; defining the terms "foreign

  9         intelligence information," "protected

10         computer," and "computer trespasser"; amending

11         s. 934.03, F.S.; authorizing the interception

12         of certain wire or electronic communications of

13         a computer trespasser; amending s. 934.07,

14         F.S.; authorizing the Department of Law

15         Enforcement to intercept wire, oral, or

16         electronic communications for purposes of

17         investigating certain additional offenses

18         concerning terrorism and the attempted or

19         threatened use of a destructive device or

20         weapon of mass destruction; requiring a law

21         enforcement agency to notify the Department of

22         Law Enforcement if an intercepted communication

23         provides evidence of certain acts of terrorism;

24         amending s. 934.09, F.S.; providing for the

25         interception of communications upon certain

26         findings of activities that threaten the

27         security of the nation or state; specifying

28         circumstances under which the court may

29         authorize the interception of communications

30         outside the court's jurisdiction; amending s.

31         934.08, F.S.; authorizing the disclosure of the

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  1         contents of an intercepted communication to

  2         certain state and federal officials; amending

  3         s. 934.22, F.S.; prohibiting a provider of

  4         electronic communication service or a provider

  5         of remote computing service from disclosing the

  6         contents of communications or information

  7         pertaining to a subscriber or customer;

  8         specifying certain exceptions; amending s.

  9         934.23, F.S.; providing for disclosure of

10         information pertaining to a subscriber or

11         customer under specified circumstances and

12         pursuant to a warrant; amending s. 934.27,

13         F.S.; providing that a request of an

14         investigative or law enforcement officer to

15         preserve records is a defense with respect to a

16         civil or criminal action concerning unlawful

17         access to communications; amending s. 934.31,

18         F.S.; prohibiting the recording of the contents

19         of communications by the use of a pen register

20         or trap and trace device; amending s. 934.33,

21         F.S.; requiring that a certification of an

22         order for a pen register or a trap and trace

23         device be provided to any person or entity not

24         specifically named in the order; requiring that

25         the order include information concerning

26         location of the device and geographic limits of

27         the order; requiring an investigative or law

28         enforcement agency to maintain a record of the

29         use of a pen register or trap and trace device

30         installed pursuant to an ex parte order;

31         requiring that the record be provided to the

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  1         court; amending s. 934.34, F.S.; providing for

  2         a trap and trace device to be installed on

  3         other facilities; providing an effective date.

  4

  5  Be It Enacted by the Legislature of the State of Florida:

  6

  7         Section 1.  Subsections (1), (8), (14), (20), and (21)

  8  of section 934.02, Florida Statutes, are amended, and

  9  subsections (24), (25), and (26) are added to said section, to

10  read:

11         934.02  Definitions.--As used in this chapter:

12         (1)  "Wire communication" means any aural transfer made

13  in whole or in part through the use of facilities for the

14  transmission of communications by the aid of wire, cable, or

15  other like connection between the point of origin and the

16  point of reception including the use of such connection in a

17  switching station furnished or operated by any person engaged

18  in providing or operating such facilities for the transmission

19  of intrastate, interstate, or foreign communications or

20  communications affecting intrastate, interstate, or foreign

21  commerce. Such term includes any electronic storage of such

22  communication.

23         (8)  "Judge of competent jurisdiction" means justice of

24  the Supreme Court, judge of a district court of appeal,

25  circuit judge, or judge of any court of record having felony

26  jurisdiction of the State of Florida, irrespective of the

27  geographic location or jurisdiction where the judge presides.

28         (14)  "Electronic communications system" means any

29  wire, radio, electromagnetic, photooptical, or photoelectronic

30  facilities for the transmission of wire or electronic

31  communications, and any computer facilities or related

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  1  electronic equipment for the electronic storage of such

  2  communications.

  3         (20)  "Pen register" means a device or process that

  4  which records or decodes dialing, routing, addressing, or

  5  signaling information transmitted by an instrument or facility

  6  from which a wire or electronic communication is transmitted,

  7  but such information does not include the contents of any

  8  communication. The electronic or other impulses which identify

  9  the numbers dialed or otherwise transmitted on the telephone

10  line to which such device is attached, but such term does not

11  include any device or process used by a provider or customer

12  of a wire or electronic communication service for billing or

13  recording as an incident to billing or, for communication

14  services provided by such provider, and does not include or

15  any device or process used by a provider or customer of a wire

16  communication service for cost accounting or other like

17  purposes in the ordinary course of its business.

18         (21)  "Trap and trace device" means a device or process

19  that which captures the incoming electronic or other impulses

20  that which identify the originating number or other dialing,

21  routing, addressing, or signaling information reasonably

22  likely to identify the source of a wire or electronic

23  communication, but such information does not include the

24  contents of any communication of an instrument or a device

25  from which a wire or electronic communication was transmitted.

26         (24)  "Foreign intelligence information" means

27  information, whether or not concerning a United States person,

28  as that term is defined in 50 U.S.C. s. 1801, which relates

29  to:

30

31

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  1         (a)  The ability of the United States to protect

  2  against actual or potential attack or other grave hostile acts

  3  of a foreign power or an agent of a foreign power;

  4         (b)  Sabotage or international terrorism by a foreign

  5  power or an agent of a foreign power;

  6         (c)  Clandestine intelligence activities by an

  7  intelligence service, a network of a foreign power, or an

  8  agent of a foreign power; or

  9         (d)  With respect to a foreign power or foreign

10  territory, the national defense or security of the United

11  States or the conduct of the foreign affairs of the United

12  States.

13         (25)  "Protected computer" means:

14         (a)  A computer for the exclusive use of a financial

15  institution or governmental entity;

16         (b)  A computer that is not for the exclusive use of a

17  financial institution or governmental entity, but that is used

18  by or for a financial institution or governmental entity and

19  with respect to which unlawful conduct can affect the use by

20  or for the financial institution or governmental entity; or

21         (c)  A computer that is used in interstate or foreign

22  commerce or communication, including a computer located

23  outside the United States.

24         (26)  "Computer trespasser" means a person who accesses

25  a protected computer without authorization and thus does not

26  have a reasonable expectation of privacy with respect to any

27  communication transmitted to, through, or from the protected

28  computer. The term does not include a person known by the

29  owner or operator of the protected computer to have an

30  existing contractual relationship with the owner or operator

31

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  1  of the protected computer for access to all or part of the

  2  protected computer.

  3         Section 2.  Paragraph (j) is added to subsection (2) of

  4  section 934.03, Florida Statutes, to read:

  5         934.03  Interception and disclosure of wire, oral, or

  6  electronic communications prohibited.--

  7         (2)

  8         (j)  It is not unlawful under ss. 934.03-934.09 for a

  9  person acting under color of law to intercept the wire or

10  electronic communications of a computer trespasser which are

11  transmitted to, through, or from a protected computer if:

12         1.  The owner or operator of the protected computer

13  authorizes the interception of the communications of the

14  computer trespasser;

15         2.  The person acting under color of law is lawfully

16  engaged in an investigation;

17         3.  The person acting under color of law has reasonable

18  grounds to believe that the contents of the communications of

19  the computer trespasser will be relevant to the investigation;

20  and

21         4.  The interception does not acquire communications

22  other than those transmitted to, through, or from the computer

23  trespasser.

24         Section 3.  Section 934.07, Florida Statutes, as

25  amended by section 1 of chapter 2001-359, Laws of Florida, is

26  amended to read:

27         934.07  Authorization for interception of wire, oral,

28  or electronic communications.--

29         (1)  The Governor, the Attorney General, the statewide

30  prosecutor, or any state attorney may authorize an application

31  to a judge of competent jurisdiction for, and such judge may

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  1  grant in conformity with ss. 934.03-934.09 an order

  2  authorizing or approving the interception of, wire, oral, or

  3  electronic communications by:

  4         (a)  The Department of Law Enforcement or any law

  5  enforcement agency as defined in s. 934.02 having

  6  responsibility for the investigation of the offense as to

  7  which the application is made when such interception may

  8  provide or has provided evidence of the commission of the

  9  offense of murder, kidnapping, aircraft piracy, arson,

10  gambling, robbery, burglary, theft, dealing in stolen

11  property, criminal usury, bribery, or extortion; any felony

12  violation of ss. 790.161-790.166, inclusive; any violation of

13  chapter 893; any violation of the provisions of the Florida

14  Anti-Fencing Act; any violation of chapter 895; any violation

15  of chapter 896; any violation of chapter 815; any violation of

16  chapter 847; any violation of s. 827.071; any violation of s.

17  944.40; or any conspiracy or solicitation to commit any

18  violation of the laws of this state relating to the crimes

19  specifically enumerated in this paragraph.

20         (b)  The Department of Law Enforcement, together with

21  other assisting personnel as authorized and requested by the

22  department under s. 934.09(5), for the investigation of the

23  offense as to which the application is made when such

24  interception may provide or has provided evidence of the

25  commission of any offense that may be an act of terrorism or

26  in furtherance of an act of terrorism or evidence of any

27  conspiracy or solicitation to commit any such violation.

28         (2)(a)  If, during the course of an interception of

29  communications by a law enforcement agency as authorized under

30  paragraph (1)(a), the law enforcement agency finds that the

31  intercepted communications may provide or have provided

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  1  evidence of the commission of any offense that may be an act

  2  of terrorism or in furtherance of an act of terrorism, or

  3  evidence of any conspiracy or solicitation to commit any such

  4  violation, the law enforcement agency shall promptly notify

  5  the Department of Law Enforcement and apprise the department

  6  of the contents of the intercepted communications. The agency

  7  notifying the department may continue its previously

  8  authorized interception with appropriate minimization, as

  9  applicable, and may otherwise assist the department as

10  provided in this section.

11         (b)  Upon its receipt of information of the contents of

12  an intercepted communications from a law enforcement agency,

13  the Department of Law Enforcement shall promptly review the

14  information to determine whether the information relates to an

15  actual or anticipated act of terrorism as defined in this

16  section. If, after reviewing the contents of the intercepted

17  communications, there is probable cause that the contents of

18  the intercepted communications meet the criteria of paragraph

19  (1)(b), the Department of Law Enforcement may make application

20  for the interception of wire, oral, or electronic

21  communications consistent with subsection (1)(b). The

22  department may make an independent new application for

23  interception based on the contents of the intercepted

24  communications. Alternatively, the department may request the

25  law enforcement agency that provided the information to join

26  with the department in seeking an amendment of the original

27  interception order, or may seek additional authority to

28  continue intercepting communications under the direction of

29  the department. In carrying out its duties under this section,

30  the department may use the provisions for an emergency

31

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  1  interception provided in s. 934.09(7) if applicable under

  2  statutory criteria.

  3         (3)(2)  As used in this section, the term "terrorism"

  4  means an activity that:

  5         (a)1.  Involves a violent act or an act dangerous to

  6  human life which is a violation of the criminal laws of this

  7  state or of the United States; or

  8         2.  Involves a violation of s. 815.06; and

  9         (b)  Is intended to:

10         1.  Intimidate, injure, or coerce a civilian

11  population;

12         2.  Influence the policy of a government by

13  intimidation or coercion; or

14         3.  Affect the conduct of government through

15  destruction of property, assassination, murder, kidnapping, or

16  aircraft piracy.

17         Section 4.  Subsection (7) and paragraph (b) of

18  subsection (11) of section 934.09, Florida Statutes, as

19  amended by section 2 of chapter 2001-359, Laws of Florida, are

20  amended to read:

21         934.09  Procedure for interception of wire, oral, or

22  electronic communications.--

23         (7)  Notwithstanding any other provision of this

24  chapter, any investigative or law enforcement officer

25  specially designated by the Governor, the Attorney General,

26  the statewide prosecutor, or a state attorney acting under

27  this chapter, who reasonably determines that:

28         (a)  An emergency exists that:

29         1.  Involves immediate danger of death or serious

30  physical injury to any person, or the danger of escape of a

31

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  1  prisoner, or conspiratorial activities threatening the

  2  security interest of the nation or state; and

  3         2.  Requires that a wire, oral, or electronic

  4  communication be intercepted before an order authorizing such

  5  interception can, with due diligence, be obtained; and

  6         (b)  There are grounds upon which an order could be

  7  entered under this chapter to authorize such interception

  8

  9  may intercept such wire, oral, or electronic communication if

10  an application for an order approving the interception is made

11  in accordance with this section within 48 hours after the

12  interception has occurred or begins to occur. In the absence

13  of an order, such interception shall immediately terminate

14  when the communication sought is obtained or when the

15  application for the order is denied, whichever is earlier. If

16  such application for approval is denied, or in any other case

17  in which the interception is terminated without an order

18  having been issued, the contents of any wire, oral, or

19  electronic communication intercepted shall be treated as

20  having been obtained in violation of s. 934.03(4), and an

21  inventory shall be served as provided for in paragraph (8)(e)

22  on the person named in the application.

23         (11)  The requirements of subparagraph (1)(b)2. and

24  paragraph (3)(d) relating to the specification of the

25  facilities from which, or the place where, the communication

26  is to be intercepted do not apply if:

27         (b)  In the case of an application with respect to a

28  wire or electronic communication:

29         1.  The application is by an agent or officer of a law

30  enforcement agency and is approved by the Governor, the

31

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  1  Attorney General, the statewide prosecutor, or a state

  2  attorney.

  3         2.  The application identifies the person believed to

  4  be committing the offense and whose communications are to be

  5  intercepted and the applicant makes a showing that there is

  6  probable cause to believe that the person's actions could have

  7  the effect of thwarting interception from a specified facility

  8  or that the person whose communications are to be intercepted

  9  has removed, or is likely to remove, himself or herself to

10  another judicial circuit within the state.

11         3.  The judge finds that such showing has been

12  adequately made.

13         4.  The order authorizing or approving the interception

14  is limited to interception only for such time as it is

15  reasonable to presume that the person identified in the

16  application is or was reasonably proximate to the instrument

17  through which such communication will be or was transmitted.

18

19  Consistent with this paragraph, a judge of competent

20  jurisdiction and limited to investigations of acts of

21  terrorism, as that term is defined in s. 934.07, the court may

22  authorize continued interception within this state, whether

23  the interception is both within or and outside the court's its

24  jurisdiction, if the application for the interception makes a

25  showing that some activity or conspiracy believed to be

26  related to, or in furtherance of, the criminal predicate for

27  the requested interception has occurred or will likely occur,

28  in whole or in part, within the jurisdiction of the court

29  where the order is being sought original interception occurred

30  within its jurisdiction.

31

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  1         Section 5.  Effective July 1, 2004, paragraph (b) of

  2  subsection (11) of section 934.09, Florida Statutes, as

  3  amended by this act and by section 3 of chapter 2001-359, Laws

  4  of Florida, is amended to read:

  5         934.09  Procedure for interception of wire, oral, or

  6  electronic communications.--

  7         (11)  The requirements of subparagraph (1)(b)2. and

  8  paragraph (3)(d) relating to the specification of the

  9  facilities from which, or the place where, the communication

10  is to be intercepted do not apply if:

11         (b)  In the case of an application with respect to a

12  wire or electronic communication:

13         1.  The application is by an agent or officer of a law

14  enforcement agency and is approved by the Governor, the

15  Attorney General, the statewide prosecutor, or a state

16  attorney.

17         2.  The application identifies the person believed to

18  be committing the offense and whose communications are to be

19  intercepted and the applicant makes a showing that there is

20  probable cause to believe that the person's actions could have

21  the effect of thwarting interception from a specified facility

22  or that the person whose communications are to be intercepted

23  has removed, or is likely to remove, himself or herself to

24  another judicial circuit within the state.

25         3.  The judge finds that such showing has been

26  adequately made.

27         4.  The order authorizing or approving the interception

28  is limited to interception only for such time as it is

29  reasonable to presume that the person identified in the

30  application is or was reasonably proximate to the instrument

31  through which such communication will be or was transmitted.

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  1

  2  Consistent with this paragraph, a judge of competent

  3  jurisdiction may authorize interception within this state,

  4  whether the interception is within or outside the court's

  5  jurisdiction, if the application for the interception makes a

  6  showing that some activity or conspiracy believed to be

  7  related to, or in furtherance of, the criminal predicate for

  8  the requested interception has occurred or will likely occur,

  9  in whole or in part, within the jurisdiction of the court

10  where the order is being sought.

11         Section 6.  Subsection (1) of section 934.08, Florida

12  Statutes, is amended to read:

13         934.08  Authorization for disclosure and use of

14  intercepted wire, oral, or electronic communications.--

15         (1)  Any investigative or law enforcement officer who,

16  by any means authorized by this chapter, has obtained

17  knowledge of the contents of any wire, oral, or electronic

18  communication or evidence derived therefrom may disclose such

19  contents to:

20         (a)  The Department of Legal Affairs for use in

21  investigations or proceedings pursuant to s. 812.035, part II

22  of chapter 501, chapter 542, or chapter 895, to any attorney

23  authorized by law to investigate and institute any action on

24  behalf of the State of Florida or political subdivision

25  thereof, or to another investigative or law enforcement

26  officer to the extent that such disclosure is appropriate to

27  the proper performance of the official duties of the officer

28  or person making or receiving the disclosure.

29         (b)  Any state or federal law enforcement official,

30  state or federal intelligence official, state or federal

31  protective services official, federal immigration official,

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  1  state or federal defense official, or state or federal

  2  security official to the extent that the contents or evidence

  3  includes foreign intelligence or counterintelligence, as

  4  defined in 50 U.S.C. s. 401a, or foreign intelligence

  5  information, as defined in this chapter, in order to assist

  6  the official who receives that information in performing his

  7  or her official duties. Any state or federal official who

  8  receives information under this subsection may use that

  9  information only as necessary in conducting official duties

10  and is subject to any limitations on the unauthorized

11  disclosure of such information.

12         Section 7.  Section 934.22, Florida Statutes, is

13  amended to read:

14         934.22  Voluntary disclosure of customer communications

15  or records contents.--

16         (1)  Except as provided in subsection (2) or subsection

17  (3):

18         (a)  A provider of person or entity who provides an

19  electronic communication service to the public may not

20  knowingly divulge to:

21         1.  Any person or entity the contents of a

22  communication while in electronic storage by that service; or.

23         2.  Any governmental entity a record or other

24  information pertaining to a subscriber to or customer of such

25  service.

26         (b)  A provider of person or entity who provides remote

27  computing service to the public may not knowingly divulge to:

28         1.  Any person or entity the contents of any

29  communication that which is carried or maintained on that

30  service:

31

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  1         a.1.  On behalf of a subscriber or customer of such

  2  service and received by means of electronic transmission from,

  3  or created by means of computer processing of communications

  4  received by means of electronic transmission from, a

  5  subscriber or customer of such remote computing service; and

  6  or

  7         b.2.  Solely for the purpose of providing storage or

  8  computer processing services to its subscriber or customer, if

  9  the provider is not authorized to access the contents of any

10  such communication for purposes of providing any service other

11  than storage or computer processing; or.

12         2.  Any governmental entity a record or other

13  information pertaining to a subscriber to or customer of such

14  service.

15         (2)  A provider described in subsection (1) person or

16  entity may divulge the contents of a communication:

17         (a)  To an addressee or intended recipient of such

18  communication or an agent of such addressee or intended

19  recipient.

20         (b)  As otherwise authorized in s. 934.03(2)(a), s.

21  934.07, or s. 934.23.

22         (c)  With the lawful consent of the originator or an

23  addressee or intended recipient of such communication, or the

24  subscriber in the case of a remote computing service.

25         (d)  To a person employed or authorized, or whose

26  facilities are used, to forward such communication to its

27  destination.

28         (e)  As may be necessarily incident to the rendition of

29  the service or to the protection of the rights or property of

30  the provider of that service.

31         (f)  To a law enforcement agency, if such contents:

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  1         1.  The contents were inadvertently obtained by the

  2  service provider;, and

  3         2.  The contents appear to pertain to the commission of

  4  a crime; or.

  5         3.  The provider reasonably believes an emergency

  6  involving immediate danger of death or serious physical injury

  7  to another person requires disclosure of the contents without

  8  delay.

  9         (3)(a)  A provider described in subsection (1) may

10  disclose a record or other information pertaining to a

11  subscriber to or customer of such service:

12         1.  As is otherwise authorized in s. 934.23.

13         2.  With the lawful consent of the customer or

14  subscriber.

15         3.  As is necessary incident to rendering service or

16  protecting the rights or property of the provider of that

17  service.

18         4.  To a governmental entity if the provider reasonably

19  believes that an emergency involving immediate danger of death

20  or serious physical injury to any person justifies disclosure

21  of the information.

22         5.  To any person other than a governmental entity.

23         (b)  Notwithstanding paragraph (a), a provider may not

24  disclose the contents of communications specified in paragraph

25  (1)(a) or paragraph (1)(b).

26         Section 8.  Section 934.23, Florida Statutes, is

27  amended to read:

28         934.23  Required disclosure of customer communications

29  or records Requirements for governmental access.--

30         (1)  An investigative or law enforcement officer may

31  require the disclosure by a provider of electronic

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  1  communication service of the contents of a wire or an

  2  electronic communication that has been in electronic storage

  3  in an electronic communications system for 180 days or less

  4  only pursuant to a warrant issued by the judge of a court of

  5  competent jurisdiction.  An investigative or law enforcement

  6  officer may require the disclosure by a provider of electronic

  7  communication services of the contents of a wire or an

  8  electronic communication that has been in electronic storage

  9  in an electronic communications system for more than 180 days

10  by the means available under subsection (2).

11         (2)  An investigative or law enforcement officer may

12  require a provider of remote computing service to disclose the

13  contents of any wire or electronic communication to which this

14  subsection is made applicable by subsection (3):

15         (a)  Without required notice to the subscriber or

16  customer if the investigative or law enforcement officer

17  obtains a warrant issued by the judge of a court of competent

18  jurisdiction; or

19         (b)  With prior notice, or with delayed notice pursuant

20  to s. 934.25, from the investigative or law enforcement

21  officer to the subscriber or customer if the investigative or

22  law enforcement officer:

23         1.  Uses a subpoena; or

24         2.  Obtains a court order for such disclosure under

25  subsection (5).

26         (3)  Subsection (2) is applicable with respect to any

27  electronic communication that is held or maintained on a

28  remote computing service:

29         (a)  On behalf of a subscriber or customer of such

30  service and received by means of electronic transmission from,

31  or created by means of computer processing of communications

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  1  received by means of electronic transmission from, a

  2  subscriber or customer of such service.

  3         (b)  Solely for the purposes of providing storage or

  4  computer processing services to a subscriber or customer, if

  5  the provider is not authorized to access the contents of any

  6  such communication for purposes of providing any service other

  7  than storage or computer processing.

  8         (4)(a)  An investigative or law enforcement officer may

  9  require Except as provided in paragraph (b), a provider of

10  electronic communication service or remote computing service

11  to may disclose a record or other information pertaining to a

12  subscriber or customer of such service, not including the

13  contents of a communication, covered by subsection (1) or

14  subsection (2), to any person other than an investigative or

15  law enforcement officer.

16         (b)  A provider of electronic communication service or

17  remote computing service shall disclose a record or other

18  information pertaining to a subscriber to or customer of such

19  service, not including the contents of communications covered

20  by subsection (1) or subsection (2), to an investigative or

21  law enforcement officer only when the investigative or law

22  enforcement officer:

23         1.  Obtains a warrant issued by the judge of a court of

24  competent jurisdiction;

25         2.  Obtains a court order for such disclosure under

26  subsection (5); or

27         3.  Has the consent of the subscriber or customer to

28  such disclosure; or.

29         4.  Seeks information under paragraph (b).

30         (b)(c)  A provider of electronic communication service

31  or remote computing service shall disclose to an investigative

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  1  or law enforcement officer the name;, address; local and long

  2  distance telephone connection records, or records of session

  3  times or durations; length of service, including the starting

  4  date of service; types of services used; telephone or

  5  instrument number or other subscriber number or identity,

  6  including any temporarily assigned network address; and means

  7  and source of payment, including any credit card or bank

  8  account number of, telephone toll billing records, telephone

  9  number or other subscriber number or identity, and length of

10  service as a subscriber to or customer of such service and the

11  types of services the subscriber or customer used when the

12  governmental entity uses a subpoena or obtains such

13  information in the manner specified in paragraph (a) for

14  obtaining information under that paragraph.

15         (c)(d)  An investigative or law enforcement officer who

16  receives records or information under this subsection is not

17  required to provide notice to a subscriber or customer.

18         (5)  A court order for disclosure under subsection (2),

19  subsection (3), or subsection (4) shall issue only if the

20  investigative or law enforcement officer offers specific and

21  articulable facts showing that there are reasonable grounds to

22  believe the contents of a wire or electronic communication or

23  the records of other information sought are relevant and

24  material to an ongoing criminal investigation.  A court

25  issuing an order pursuant to this section, on a motion made

26  promptly by the service provider, may quash or modify such

27  order if the information or records requested are unusually

28  voluminous in nature or compliance with such order otherwise

29  would cause an undue burden on such provider.

30         (6)  No cause of action shall lie in any court against

31  any provider of wire or electronic communication service, its

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  1  officers, employees, agents, or other specified persons for

  2  providing information, facilities, or assistance in accordance

  3  with the terms of a court order, warrant, subpoena, or

  4  certification under ss. 934.21-934.28.

  5         (7)(a)  A provider of wire or electronic communication

  6  services or a remote computing service, upon the request of an

  7  investigative or law enforcement officer, shall take all

  8  necessary steps to preserve records and other evidence in its

  9  possession pending the issuance of a court order or other

10  process.

11         (b)  Records referred to in paragraph (a) shall be

12  retained for a period of 90 days, which shall be extended for

13  an additional 90 days upon a renewed request by an

14  investigative or law enforcement officer.

15         (8)  A provider of electronic communication service, a

16  remote computing service, or any other person who furnished

17  assistance pursuant to this section shall be held harmless

18  from any claim and civil liability resulting from the

19  disclosure of information pursuant to this section and shall

20  be reasonably compensated for reasonable expenses incurred in

21  providing such assistance.

22         Section 9.  Subsection (4) of section 934.27, Florida

23  Statutes, is amended to read:

24         934.27  Civil action:  relief; damages; defenses.--

25         (4)  A good faith reliance on any of the following is a

26  complete defense to any civil or criminal action brought under

27  ss. 934.21-934.28:

28         (a)  A court warrant or order, a subpoena, or a

29  statutory authorization, including, but not limited to, a

30  request of an investigative or law enforcement officer to

31

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  1  preserve records or other evidence, as provided in s.

  2  934.23(7).

  3         (b)  A request of an investigative or law enforcement

  4  officer under s. 934.09(7).

  5         (c)  A good faith determination that s. 934.03(3)

  6  permitted the conduct complained of.

  7         Section 10.  Subsections (3) and (4) of section 934.31,

  8  Florida Statutes, are amended to read:

  9         934.31  General prohibition on pen register and trap

10  and trace device use; exception.--

11         (3)  An investigative or law enforcement officer

12  authorized to install and use a pen register or trap and trace

13  device under ss. 934.31-934.34 shall use technology reasonably

14  available to him or her which restricts the recording or

15  decoding of electronic or other impulses to the dialing,

16  routing, addressing, and signaling information used in

17  processing and transmitting wire or electronic communications

18  so that the contents of any wire or electronic communications

19  are not recorded or decoded call processing.

20         (4)(a)  Notwithstanding any other provision of this

21  chapter, any investigative or law enforcement officer

22  specially designated by the Governor, the Attorney General,

23  the statewide prosecutor, or a state attorney acting pursuant

24  to this chapter, who reasonably determines that:

25         1.  An emergency exists which:

26         a.  Involves immediate danger of death or serious

27  physical injury to any person or the danger of escape of a

28  prisoner, or involves conspiratorial activities threatening

29  the security interest of the nation or state; and

30

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  1         b.  Requires the installation and use of a pen register

  2  or a trap and trace device before an order authorizing such

  3  installation and use can, with due diligence, be obtained; and

  4         2.  There are grounds upon which an order could be

  5  entered under this chapter to authorize such installation and

  6  use,

  7

  8  may have installed and use a pen register or trap and trace

  9  device if, within 48 hours after the installation has occurred

10  or begins to occur, an order approving the installation or use

11  is issued in accordance with s. 934.33.

12         (b)  In the absence of an authorizing order, such use

13  shall immediately terminate when the information sought is

14  obtained, when the application for the order is denied, or

15  when 48 hours have lapsed since the installation of the pen

16  register or trap and trace device, whichever is earlier.

17         (c)  The knowing installation or use by any

18  investigative or law enforcement officer of a pen register or

19  trap and trace device pursuant to paragraph (a) without

20  application for the authorizing order within 48 hours after

21  the installation constitutes a violation of s. 934.31.

22         (d)  A provider of wire or electronic service,

23  landlord, custodian, or other person who has furnished

24  facilities or technical assistance pursuant to this subsection

25  shall be held harmless from any claims and civil liability

26  resulting from the disclosure of information pursuant to this

27  subsection and shall be reasonably compensated for reasonable

28  expenses incurred in providing such facilities and assistance.

29         Section 11.  Section 934.33, Florida Statutes, is

30  amended to read:

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  1         934.33  Issuance of an order for a pen register or a

  2  trap and trace device.--

  3         (1)  Upon application made under s. 934.32, the court

  4  shall enter an ex parte order authorizing the installation and

  5  use of a pen register or a trap and trace device within the

  6  jurisdiction of the court if the court finds that the

  7  applicant specified in s. 934.32(1) has certified to the court

  8  that the information likely to be obtained by such

  9  installation and use is relevant to an ongoing criminal

10  investigation. Whenever such order is served on any person or

11  entity not specifically named in the order, upon request of

12  such person or entity, the person specified in s. 934.32 who

13  has requested and is serving such order shall provide written

14  or electronic certification that such order applies to the

15  person or entity being served.

16         (2)  An order issued under this section:

17         (a)  Must specify the following:

18         1.  The identity, if known, of the person to whom is

19  leased or in whose name is listed the telephone line or other

20  facility to which the pen register or trap and trace device is

21  to be attached or applied.

22         2.  The identity, if known, of the person who is the

23  subject of the criminal investigation.

24         3.  The attributes of the communications to which the

25  order applies, including the number or other identifier and,

26  if known, the physical location of the telephone line or other

27  facility to which the pen register or trap and trace device is

28  to be attached or applied and, in the case of an order

29  authorizing installation and use of a trap and trace device,

30  the geographic limits of the trap and trace order.

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  1         4.  A statement of the offense to which the information

  2  likely to be obtained by the pen register or trap and trace

  3  device relates.

  4         (b)  Must direct, upon the request of the applicant,

  5  the furnishing of information, facilities, and technical

  6  assistance necessary to accomplish the installation of the pen

  7  register or trap and trace device under s. 934.34.

  8         (3)(a)  An order issued under this section may not

  9  authorize the installation and use of a pen register or a trap

10  and trace device for more than 60 days.

11         (b)  Extensions of such an order may be granted but

12  only upon an application for an order under s. 934.32 and upon

13  the judicial finding required by subsection (1).  The period

14  of extension may not exceed 60 days.

15         (4)  An order authorizing or approving the installation

16  and use of a pen register or a trap and trace device must

17  direct that:

18         (a)  The order be sealed until otherwise ordered by the

19  court, and

20         (b)  The person owning or leasing the line or other

21  facility to which the pen register or a trap and trace device

22  is attached or applied, or who is obligated by the order has

23  been ordered by the court to provide assistance to the

24  applicant, not disclose the existence of the pen register or

25  trap and trace device or the existence of the investigation to

26  the listed subscriber or to any other person except as

27  otherwise ordered by the court.

28         (5)  A court may not require greater specificity or

29  additional information beyond that which is required under s.

30  934.32 and this section as a requisite for issuing an order as

31  provided in this section.

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  1         (6)(a)  If an investigative or law enforcement agency

  2  implementing an ex parte order under this section seeks to do

  3  so by installing and using its own pen register or trap and

  4  trace device on a packet-switched data network of a provider

  5  of electronic communication service to the public, the agency

  6  must ensure that a record is maintained which identifies:

  7         1.  Each officer who installed the device and each

  8  officer who accessed the device to obtain information from the

  9  network;

10         2.  The date and time the device was installed; the

11  date and time the device was uninstalled; and the date, time,

12  and duration of each occasion the device was accessed to

13  obtain information;

14         3.  The configuration of the device at the time of its

15  installation and any subsequent modification of that

16  configuration; and

17         4.  Any information that was collected by the device.

18         (b)  To the extent that the pen register or trap and

19  trace device can be set automatically to record electronically

20  the information required in paragraph (a), the record shall be

21  maintained electronically throughout the installation and use

22  of the device.

23         (7)  The record maintained under subsection (6) shall

24  be provided ex parte and under seal to the court that entered

25  the ex parte order authorizing the installation and use of the

26  device within 30 days after termination of the order,

27  including any extension of the order.

28         Section 12.  Subsection (2) of section 934.34, Florida

29  Statutes, is amended to read:

30         934.34  Assistance in installation and use of a pen

31  register or a trap and trace device.--

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  1         (2)  Upon the request of the applicant specified in s.

  2  934.32(1), a provider of a wire or electronic communication

  3  service, landlord, custodian, or other person shall install a

  4  trap and trace device forthwith on the appropriate line or

  5  other facility and shall furnish such investigative or law

  6  enforcement officer or other applicant all additional

  7  information, facilities, and technical assistance, including

  8  installation and operation of the device unobtrusively and

  9  with a minimum of interference with the services that the

10  person so ordered by the court accords the party with respect

11  to whom the installation and use is to take place if such

12  installation and assistance is directed by a court order as

13  provided in s. 934.33(2)(b).  Unless otherwise ordered by the

14  court, the results of the trap and trace device shall be

15  furnished, pursuant to s. 934.31(4) or s. 934.33(2)(b), to an

16  officer of the law enforcement agency designated in the court

17  order at reasonable intervals during regular business hours

18  for the duration of the order. The obligation of a provider of

19  electronic communication service under such an order or under

20  such emergency pen register or trap and trace device

21  installation may include, but is not limited to, conducting an

22  in-progress trace, or providing other assistance to support

23  the investigation as may be specified in the order.

24         Section 13.  This act shall take effect upon becoming a

25  law.

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  1            *****************************************

  2                       LEGISLATIVE SUMMARY

  3    Revises various laws governing the interception of
      communications by investigative or law enforcement
  4    agencies. Defines the terms "foreign intelligence
      information," "protected computer," and "computer
  5    trespasser." Authorizes a law enforcement agency to
      intercept wire or electronic communications of a computer
  6    trespasser. Authorizes the Department of Law Enforcement
      to intercept wire, oral, or electronic communications for
  7    purposes of investigating acts of terrorism or the
      attempted or threatened use of a destructive device or
  8    weapon of mass destruction. Provides for a court to
      authorize the interception of communications outside the
  9    court's jurisdiction. Authorizes a law enforcement agency
      to disclose the contents of an intercepted communication
10    to certain state and federal officials. Provides that the
      request of a law enforcement officer to preserve records
11    is a defense against a civil or criminal action
      concerning unlawful access to communications. Provides
12    certain limitations on the use of a pen register or trap
      and trace device. Requires that a law enforcement agency
13    maintain a record of the use of a pen register or trap
      and trace device installed pursuant to an ex parte order.
14    (See bill for details.)

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