FL State Sen. Jeff Brandes files electronic device privacy protection bill

Florida state senator Jeff Brandes (R), has filed SB 1256, which would require a warrant for the search of the content, information, and communications of cellular phones, portable electronic communication devices, and microphone-enabled household devices (i.e. Amazon’s Echo, Google Home devices, etc.). The intent of the legislation is to protect your privacy regarding these devices by reasserting the Fourth Amendment of the U.S. Constitution and Article I, Section12 of the Florida Constitution.

U.S. Constitution, Amendment IV: Searches and Seizures – “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Florida Constitution – Article 1, Section 12: “Searches and seizures.—The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution. History.—Am. H.J.R. 31-H, 1982; adopted 1982.”

The bill would require law enforcement to obtain a warrant from a judge to access your communications and location data information, and would provide criminal penalties for the intentional and unlawful access without authorization of certain devices and obtainment of wire, oral, or electronic communications stored within those devices, etc. The bill summary states:

“Search of the Content, Information, and Communications of Cellular Phones, Portable Electronic Communication Devices, and Microphone-enabled Household Devices; Authorizing the obtaining in criminal cases of the contents of electronic communications only by court order or by search warrant, as provided in ch. 934, F.S., unless otherwise required by law; requiring that each application for a warrant, rather than an order, authorizing or approving the interception of wire, oral, or electronic communications be made in writing and state the applicant’s authority; providing criminal penalties for the intentional and unlawful access without authorization of certain devices and obtainment of wire, oral, or electronic communications stored within those devices, etc.”

Currently there is no House companion bill filed. Track SB 1256 here.

A related issue is currently before the U.S. Supreme Court, in the case of Carpenter v. United States, where the issue is whether Fourth Amendment protections and property rights apply to certain electronic data (i.e. information associated with cell phones). [read oral arguments hear; track case here and here]. The U.S. Supreme Court has already ruled on a similar case, Riley v. California, and held that generally, the police may not, without a warrant, search digital information on a cellphone seized from an individual who has been arrested.

Similar legislation, called the The “Privacy Protection Act,” died in committee in the Florida legislature in 2015. That bill was intended to protect certain personal, digital and electronic data from warrantless searches.

Related:

Justices Alito and Gorsuch Clash Over Cell Phones, Privacy, and Property Rights

Court Rules Warrantless Cell Phone Tracking Violates Fourth Amendment

Florida “Privacy Protection Act” aims to protect privacy and prevent warrantless surveillance

Florida legislature passes civil asset forfeiture reforms

Can Code Enforcement Officers enter private property without consent or a warrant?

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