SB 1256 updates Florida law regarding the search of household communication devices
The Florida Senate Committee on Criminal Justice, chaired by Senator Randolph Bracy (D-Ocoee), today passed Senate Bill 1256, Search of the Content, Information, and Communications of Cellular Phones, Portable Electronic Communication Devices, and Microphone-enabled Household Devices, by Senator Jeff Brandes (R-St. Petersburg). The legislation protects the constitutional rights of Floridians by addressing privacy issues related to the use of new communications technology.
“We need to make sure Florida laws keep pace with changes in technology,” said Senator Brandes. “With more and more families utilizing microphone-enabled communications tools to aid in daily household activities, this legislation makes sure our laws are clear with regard to when and how these devices can be subject to search.”
“Advancements in technology offer law enforcement new techniques for investigation and surveillance as they work to keep criminals off our streets. Likewise, the courts are facing new questions about the Fourth Amendment implications of this technology,” said Senate President Joe Negron (R-Stuart). “This legislation addresses current ambiguities and protects Floridians from unconstitutional searches of their property.”
Senate Bill 1256 prohibits the intentional, unlawful access, without authorization, to a cellular phone, portable electronic communication device, or microphone-enabled household device when a person obtains wire, oral, or electronic communications stored within the device.
The bill amends Florida law to add the term “electronic communications” to the current terminology of “wire and oral” communications in the legislative findings. Additionally, to provide clarity with regard to the application of this law, the bill also creates new legislative findings:
- Recognizing a subjective and objectively reasonable expectation of privacy in precise location data. Finding that a warrant should be issued by a court for law enforcement to obtain the precise location of a person, a cellular phone, or a portable electronic communication device without the consent of the device owner.
- Recognizing that portable electronic devices can store, and encourage the storage of, an almost limitless amount of personal and private information. Further recognizing that these devices are commonly used to access personal and business information, and other data stored in computers and servers that can be located anywhere in the world. Finding that a person who uses a portable electronic device has a reasonable and justifiable expectation of privacy in the information contained in the portable electronic device.
- Recognizing that microphone-enabled household devices often contain microphones that listen for and respond to environmental triggers. Further recognizing that these devices are generally connected to and communicate through the Internet, resulting in the storage of and accessibility of daily household information in a device itself, or in a remote computing service. Finding that an individual should not have to choose between using household technological enhancements and conveniences, or preserving the right to privacy in one’s home.
Background
The Fourth Amendment of the United States Constitution guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated. Further, the Fourth Amendment guarantees no warrants shall issue without probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Under Fourth Amendment jurisprudence, a search occurs whenever the government intrudes upon an area in which a person has a reasonable expectation of privacy. A warrantless search is generally unreasonable, unless an exception to the warrant requirement applies. The Florida Constitution similarly protects the people against unreasonable searches and seizures, and that right is construed in conformity with the Fourth Amendment of the U.S. Constitution. Both the Florida and federal constitutions require a warrant to be supported by probable cause, as established by oath or affirmation, and to particularly describe the place to be searched, and items or people to be seized.
