This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0401.CRJ
DATE: 12/1/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 401 Tracking Devices and Applications
SPONSOR(S): Overdorf
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Criminal Justice Subcommittee Butcher Hall
2) Justice Appropriations Subcommittee
3) Judiciary Committee
SUMMARY ANALYSIS
When used for its intended purpose, a consumer tracking device can help track missing items when attached
to belongings such as a user’s purse, keys, wallet, or luggage. Unfortunately, as affordable consumer tracking
devices have grown in popularity, so too have concerns about the potential for nefarious uses of such
technology. In recent years, there have been numerous reports of tracking devices being discovered
surreptitiously slipped into clothing and purses or attached to the vehicle of another person. In addition to
tracking devices, tracking applications can also be used to follow the location or movement of another person,
potentially without that person’s knowledge or consent. Some applications have legitimate uses, but may be
accessed by third parties without the user’s consent, while others are developed and marketed as surveillance
applications, commonly targeting potential customers interested in using the technology to track the
movements and communications of a romantic partner.
Unless exempted, s. 934.425, F.S., prohibits
a person from knowingly installing a tracking device or tracking
application on another person’s property without the other person’s consent. A violation of the prohibition is
punishable as a second degree misdemeanor. Current law does not specifically prohibit the placement, rather
than the installation, of a tracking device or application on another person’s property without his or her consent
or prohibit the unconsented to use of a tracking device or tracking application by a person other than the one
responsible for installing the device or application.
HB 401 amends s. 934.425, F.S., to prohibit a person from knowingly:
Placing, in addition to installing, a tracking device or tracking application on another person’s property
without that person’s consent; or
Using a tracking device or tracking application to determine the location or movement of another person
or another person’s property without that person’s consent.
The bill expands the scope of prohibited conduct to capture those persons who do not install or place a
tracking device or tracking application on another person’s property themselves, but who nonetheless access
and use such a device or application to determine the location or movement of another person or another
person’s property without that person’s consent. Additionally, by prohibiting the placement, in addition to the
installation, of a tracking device or application, the bill may clarify that a person may also commit a violation by
simply dropping such a device into another person’s property, such as a purse or coat pocket.
The bill increases the penalty for a violation of s. 934.425, F.S., from a second degree misdemeanor to a third
degree felony, punishable by up to five years imprisonment and a $5,000 fine.
The bill may have a positive indeterminate impact on jail and prison beds by expanding the scope of prohibited
conduct under s. 934.425, F.S., and increasing the penalty for a violation from a second degree misdemeanor
to a third degree felony, which may result in longer jail sentences and new prison admissions.
The bill provides an effective date of October 1, 2024. STORAGE NAME: h0401.CRJ PAGE: 2
DATE: 12/1/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Location Tracking Technology
Global Positioning System
The Global Positioning System (GPS) is a space-based radio navigation system, owned by the United
States Government and operated by the United States Space Force. GPS consists of three segments,
including the:
Space Segment: A constellation of 31 operational satellites that circle the Earth at an altitude of
approximately 11,000 miles every 12 hours;
Control Segment: Stations on Earth that monitor and maintain the GPS satellites; and
User Segment: Receivers that process the navigation signals from the GPS satellites and
calculate position and time.
1
Each GPS satellite transmits its position and time at regular intervals and the signals are intercepted by
GPS receivers. The receiver is then able to determine its position by calculating how long it took for the
signal to reach the receiver. GPS currently provides two levels of services: standard positioning service
and precise positioning service. Access to precise positioning service is restricted to the United States
Armed Forces, Federal agencies, and select allied armed forces and governments. Standard
positioning service is available to all users on a continuous basis, free of any direct charge to users.
2
GPS is widely used in a variety of applications because its capabilities are accessible using small,
inexpensive equipment.
3
Wi-Fi Positioning
Wi-Fi is a radio-frequency technology for wireless communication that is used by nearly all devices and
network infrastructure, including smartphones, computers, Internet of Things devices, routers, and
more and can be used to transmit data between devices using radio waves.
4
Wi-Fi can be leveraged to
detect and track the location of people, devices, and assets, and can be easily activated for indoor
positioning with existing Wi-Fi access points. The most commonly used Wi-Fi positioning techniques
determine a device’s location by using a measure called received signal strength indicator (RSSI). In
RSSI applications, multiple existing Wi-Fi access points or Wi-Fi enabled sensors deployed in a fixed
position detect transmitting Wi-Fi devices and the received signal strength of a device’s signal. The
location data collected by the access points or sensors is sent to the central indoor positioning or real-
time location system, which analyzes the data to estimate the position of the transmitting device.
Alternatively, the signal strength of nearby access points can be used to determine a device’s location.
5
Wi-Fi positioning technology is particularly popular in providing location services in indoor spaces
where GPS may not work as effectively.
Bluetooth Low Energy
1
Catherine G. Manning, What is GPS, NASA, (Sept. 25, 2023) https://www.nasa.gov/directorates/somd/space-communications-
navigtation-program/gps/ (last visited Dec. 1, 2023).
2
Id.
3
Satellite Navigation- Global Positioning System (GPS), Federal Aviation Administration,
https://wwwfaa.gov/about/office_org/headquarters_offices/ato/service_units/techops/navservices/gnss/gps (last visited Dec. 1, 2023)
4
What is Wi-Fi Positioning, Inpixon Indoor Intelligence, https://www.inpixon.com/technology/standards/wifi (last visited Dec. 1, 2023).
5
Id. STORAGE NAME: h0401.CRJ PAGE: 3
DATE: 12/1/2023
Bluetooth Low Energy (BLE) is a radio frequency technology for wireless communication that can be
leveraged to detect and track the location of people, devices, and assets in indoor spaces. BLE uses
small Bluetooth transmitters, called Beacons, to detect wireless devices such as BLE-enabled smart
phones. Beacons broadcast signals at regular intervals that can be detected by other BLE-enabled
devices. Location data from Beacons are collected by a BLE device and forwarded to an internal
positioning system to determine the devices location. Like Wi-Fi, BLE primarily uses RSSI to detect the
location of people, devices, and assets.
6
Ultra-Wideband Technology
Ultra-Wideband (UWB) technology allows for information to be transmitted across a wide radio
bandwidth. While similar to Wi-Fi and Bluetooth technology, UWB technology measures time of flight
(ToF) as opposed to utilizing RSSI. Utilizing ToF, an electromagnetic impulse is sent from one device to
another, measuring the time it takes from transmission to receipt of the impulse, and allowing for the
determination of distance between devices. Measurements are then able to be correlated to determine
a signal’s angle of arrival, allowing UWB “tagged” objects to be located with accuracy down to the
centimeter, which is far more precise than Bluetooth technology permits.
7
Abuse of Location Tracking Technology
When used for its intended purpose, a consumer tracking device(typically a small coin-sized device
equipped with a speaker, antenna, and battery) can help users track missing items when attached to
belongings such as a user’s purse, keys, wallet, or luggage. If the user’s item goes missing, the
tracking device pings nearby products also connected to the network in order to determine the devices
location. The device then sends its current location back to the user, and in some cases, provides the
user with directions to the device’s location.
8
These popular devices sell from around twenty five to
thirty five dollars for one unit to around one hundred dollars for a four-pack of units.
9
Unfortunately, as affordable consumer tracking devices have gained popularity, so too have concerns
about the potential for nefarious uses of such tracking technology. In recent years, there have been
numerous reports of consumer trackers being discovered surreptitiously slipped into clothing and
purses or attached to the vehicle of another person.
10
In response, the manufacturers of some tracking
devices have made efforts to curb their misuse and make consumers aware if a device has gone out of
range or if a device is away from its owner and nearby another networked device for an extended
period of time.
11
Additionally, some companies have developed applications that can be used by
consumers to scan for nearby tracking devices.
12
Other companies have specifically employed anti-
stalking measures in the functionality of the tracking device itself, such as requiring a user to register
using multi-factor authentication, provide government identification, and acknowledge that personal
6
Bluetooth RTLS, Location Tracking, & Positioning, Inpixon Indoor Intelligence,
https://www.inpixon.com/technology/standards/bluetooth-low-energy (last visited Dec. 1, 2023).
7
Robert Triggs, Calvin Wankhede, What is UWB, and why is it in my phone? Ultra wideband technology, explained, Android Authority,
(Aug. 30, 2023), https://www.androidauthority.com/what-is-uwb-1151744/ (last visited Dec. 1, 2023).
8
Samantha Cole, Police Records Show Women Are Being Stalked With Apple AirTags Across the Country, Motherboard Tech by
VICE, (Apr. 6, 2022) https://www.vice.com/en/article/y3vj3y/apple-airtags-police-reports-stalking-harassement (last visited Dec. 1,
2023).
9
Kevin Webb and Annabelle Williams, Apple’s AirTag is designed to compete with Tile’s family of Bluetooth trackers-here’s how they
stack up, Business Insider, (Aug. 24, 2022) https://www.businessinsider.com/guides/tech/apple-airtags-vs-tile-tracker-bluetooth (last
visited Dec. 1, 2023).
10
Emily J. Hanson and Kristin Finklea, Stalking Concerns Raised by Bluetooth Tracking Technologies: In Brief, Congressional
Research Service, (Feb. 15, 2022), https://crsreports.congress.gov/product/pdf (last visited Dec. 1, 2023); Lisa Zobel, Mark Muldofsky,
Nicole Mastrangelo, Deborah Kim, Anneke Ball, Rachel Wenzlaff, and Ivan Pereira, Apple AirTags causing major security concerns
over reports of stalking, ABC News, (Jan. 20, 2023) https://abcnews.go.com/US/apple-airtags-causing-major-security-concerns-reports-
stalking/story?id=96531871 (last visited Dec. 1, 2023).
11
For example, iPhone owners should receive a push alert whenever an unknown AirTag is nearby for an extended period of time and
away from its owner. Reece Rogers, Are you Being Tracked by an AirTag? Here’s How to Check, Wired, (Aug. 11, 2023)
https://www.wired.com/story/how-to-find-airtags/ (last visited Dec. 1, 2023).
12
Id. STORAGE NAME: h0401.CRJ PAGE: 4
DATE: 12/1/2023
information can and will be shared with law enforcement at the company’s discretion to aid in the
investigation and prosecution of suspected stalking.
13
In addition to tracking devices, tracking applications can also be used to follow the location or
movement of another person, potentially without that person’s knowledge or consent. Some
applications, such as Find My iPhone and other applications developed to help parents keep tabs on
minor children, have legitimate uses but may be accessed by third parties without the consent of the
user. Other applications are developed and marketed as surveillance applications, commonly targeting
potential customers interested in the using the technology to track the movements and communications
of a romantic partner.
14
Some tech platforms have responded to the proliferation of these applications
by banning companies from advertising applications on their platforms with the express purpose of
tracking and monitoring another person or their activities without their authorization.
15
Cyberstalking
Section 784.048, F.S., prohibits a person from willfully, maliciously, and repeatedly following,
harassing, or cyberstalking another person. Under s. 784.048(1)(d), F.S., “cyberstalking” means to
engage in the following conduct when such conduct causes substantial emotional distress to the
person targeted and serves no legitimate purpose:
To engage in a course of conduct to communicate, or to cause to be communicated, directly or
indirectly, words, images, or language by or through the use of electronic mail or electronic
communication, directed at or pertaining to a specific person; or
To access, or attempt to access, the online accounts or Internet-connected home electronic
systems of another person without that person’s permission.
Generally, a person who commits a cyberstalking violation commits a first degree misdemeanor.
16
However, such a violation is enhanced to aggravated stalking, a third degree felony,
17
if any of the
following circumstances are present:
The offender makes a credible threat
18
to the targeted person;
The violation occurred after an injunction for protection against repeat violence, sexual violence,
or dating violence pursuant to s. 784.046, F.S., or an injunction for protection against domestic
violence pursuant to s. 741.30, F.S., or any other court-imposed prohibition of conduct toward
the targeted person or his or her property was ordered; or
The offender was previously sentenced for a violation of s. 794.011, F.S., relating to sexual
battery, s. 800.04, F.S., relating to lewd or lascivious offenses, or s. 847.0135(5), F.S.,
prohibited computer transmissions to persons less than 16 years old, and prohibited from
contacting the targeted person.
Unlawful Installation of a Tracking Device or Application
13
Sarah Perez, Tile takes extreme steps to limit stalkers and thieves from using its Bluetooth trackers, TechCrunch (Feb. 16, 2023),
https://techcrunch.com/2023/02/16/tile-takes-extreme-steps-to-limit-stalkers-and-thieves-from-using-its-bluetooth-trackers/ (last visited
Dec. 1, 2023).
14
Jennifer Valentino-DeVries, Hundreds of Apps Can Empower Stalkers to Track Their Victims, The New York Times, (May 19, 2018)
https:///www.nytimes.com/2018/05/19/technology/phone-apps-stalking.html (last visited Dec. 1, 2023).
15
Zack Whittaker, ‘Stalkerware’ phone spying apps have escaped Google’s ad ban, TechCrunch, (Aug. 11, 2023)
https://techcrunch.com/2020/08/11/stalkerware-apps-google-ads/ (last visited Dec. 1, 2023).
16
A first degree misdemeanor is punishable by up to one year in county jail and a $1,000 fine. Ss. 775.082 and 775.083, F.S.
17
A third degree felony is punishable by up to five years imprisonment and a $5,000 fine. Ss. 775.082, 775.083, or 775.084, F.S.
18
A “credible threat” means a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic
communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or
her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the
apparent ability to carry out the threat to cause such harm. It is not necessary to prove that the person making the threat had the intent
to actually carry out the threat. The present incarceration of the person making the threat is not a bar to prosecution under this section.
S. 784.048(1)(c), F.S. STORAGE NAME: h0401.CRJ PAGE: 5
DATE: 12/1/2023
Unless exempted, s. 934.425, F.S., prohibits
a person from knowingly installing a tracking device
19
or
tracking application
20
on another person’s property without the other person’s consent.
Section 934.425, F.S., specifies that the prohibition does not apply to:
A law enforcement officer as defined in s. 943.10, F.S., or any local, state, federal, or military
law enforcement agency, that lawfully installs a tracking device or tracking application on
another person’s property as part of a criminal investigation;
A parent or legal guardian of a minor child who installs a tracking device or tracking application
on the minor child’s property if:
o The parents or legal guardians are lawfully married to each other and are not separated
or otherwise living apart, and either parent or legal guardian consents to the installation
of the tracking device or tracking application;
o The parent or legal guardian is the sole surviving parent or legal guardian of the minor
child;
o The parent or legal guardian has sole custody of the minor child; or
o The parents or legal guardians are divorced, separated, or otherwise living apart and
both consent to the installation of the tracking device or tracking application;
A caregiver of an elderly person or disabled adult, as those terms are defined in s. 825.101,
F.S., if the elderly person or disabled adult’s treating physician certifies that the installation of a
tracking device or tracking application onto the elderly person or disabled adult’s property is
necessary to ensure the safety of the elderly person or disabled adult;
A person acting in good faith on behalf of a business entity for a legitimate business purpose,
except for persons engaged in private investigation, as defined in s. 493.6101, F.S;
21
or
An owner or lessee of a motor vehicle that installs, or directs the installation of, a tracking device
or tracking application on such vehicle during the period of ownership or lease, provided that:
o The tracking device or tracking application is removed before the vehicle’s title is
transferred or the vehicle’s lease expires;
o The new owner or lessor of the vehicle consents in writing for the tracking device or
tracking application to remain installed; or
o The owner of the vehicle at the time of the installation of the tracking device or tracking
application was the original manufacturer of the vehicle.
22
Additionally, s. 934.425, F.S., specifies that a person’s consent to be tracked is presumed to be
revoked if:
The consenting person and the person to whom consent was given are lawfully married and
one person files a petition for dissolution of marriage from the other; or
The consenting person or the person to whom consent was given files an injunction for
protection against the other person pursuant to s. 741.30, F.S., relating to domestic violence, s.
741.315, F.S., relating to foreign protection orders, s. 784.046, F.S., relating to repeat violence,
sexual violence, or dating violence, or s. 784.0485, F.S., relating to stalking.
23
A violation of the prohibition is punishable as a second degree misdemeanor.
24
19
A “tracking device” means any device whose primary purpose is to track or identify the location or movement of an individual. S.
934.425(1)(c), F.S.
20
A “tracking application” means any software program whose primary purpose is to track or identify the location or movement of an
individual. S. 934.425(1)(b), F.S.
21
“Private investigation” means the investigation by a person or persons for the purpose of obtaining information with reference to any
of the following matters: crime or wrong done or threatened against the United States or any state or territory of the United States, when
operating under express written authority of the governmental official responsible for such investigation; to identify habits, conduct,
movements, whereabouts, affiliations, associations, transactions, reputation, or character of any society, person, or groups of persons;
the credibility of witnesses or other persons; the whereabouts of missing persons, owners of unclaimed property or escheated property,
or heirs to estates; the location or recovery of lost or stolen property; the causes and origin of, or responsibility for, fires, libels, slanders,
losses, accidents, damage, or injuries to real or personal property; or the business of securing evidence to be used before investigating
committees or boards of award or arbitration or in the trial of civil or criminal cases and the preparation thereof. S. 493.6101(17), F.S.
22
S. 934.425(4)(a-e), F.S.
23
S. 934.425(3)(a-b), F.S.
24
A second degree misdemeanor is punishable by up to 60 days in county jail and a $500 fine. Ss. 775.082 and 775.083, F.S. STORAGE NAME: h0401.CRJ PAGE: 6
DATE: 12/1/2023
Current law does not specifically prohibit the placement, rather than the installation, of a tracking device
or application on another person’s property without his or her consent or prohibit the unconsented to
use of a tracking device or tracking application by a person other than the one responsible for installing
the device or application.
Grounds for Issuance of a Search Warrant
Under s. 933.02, F.S., a search warrant may be issued upon the following grounds:
When the property shall have been stolen or embezzled in violation of law;
When any property shall have been used:
o As a means to commit any crime;
o In connection with gambling, gambling implements and appliances; or
o In violation of s. 847.011, F.S., or other laws in reference to obscene prints and
literature;
When any property constitutes evidence relevant to proving that a felony has been committed;
When property is being held or possessed:
o In violation of any of the laws prohibiting the manufacture, sale, and transportation of
intoxicating liquors;
o In violation of the fish and game laws;
o In violation of the laws relative to food and drug; or
o In violation of the laws relative to citrus disease pursuant to s. 581.184, F.S.; or
When the laws in relation to cruelty to animals, as provided in ch. 828, F.S., have been or are
violated in any particular building or place.
25
Summarizing the distinction between misdemeanor and felony crimes in relation to obtaining property
via a search warrant, the Fourth District Court of Appeal has said, “property used to commit any
crime—whether felony or misdemeanor—may be seized under a warrant; while property merely
constituting relevant evidence of a crime may be seized only if the suspected crime is a felony.”
26
Regarding a misdemeanor crime, “property seized can be retained only if it constitutes property actually
used to commit the misdemeanors alleged as the basis for the warrant.”
27
Under current law, because a violation of s. 934.425, F.S., for the unlawful installation of a tracking
device or application is a second degree misdemeanor, evidence such as subscriber information or
application, location, or download data may fall outside the scope of property for which a law
enforcement officer may obtain a search warrant and thus is unavailable to aide in a criminal
investigation.
Criminal Punishment Code
Felony offenses which are subject to the Criminal Punishment Code
28
are listed in a single offense
severity ranking chart (OSRC),
29
which uses 10 offense levels to rank felonies from least severe to
most severe. Each felony offense listed in the OSRC is assigned a level according to the severity of the
offense.
30,31
A person’s primary offense, any other current offenses, and prior convictions are scored
using the points designated for the offense severity level of each offense.
32,33
The final score
25
S. 933.02, F.S.
26
Bordo, Inc. v. State, 627 So. 2d 561, 563 (Fla. 4th DCA 1993).
27
Id. at 564.
28
All felony offenses, with the exception of capital felonies, committed on or after October 1, 1998, are subject to the Criminal
Punishment Code. S. 921.002, F.S.
29
S. 921.0022, F.S.
30
S. 921.0022(2), F.S.
31
Felony offenses that are not listed in the OSRC default to statutorily assigned levels, as follows: an unlisted third-degree felony
defaults to a level 1; an unlisted second-degree felony defaults to a level 4; an unlisted first-degree felony defaults to a level 7; an
unlisted first-degree felony punishable by life defaults to a level 9; and an unlisted life felony defaults to a level 10. S. 921.0023, F.S.
32
Ss. 921.0022 and 921.0024, F.S.
33
A person may also accumulate points for factors such as victim injury points, community sanction violation points, and certain
sentencing multipliers. S. 921.0024(1), F.S. STORAGE NAME: h0401.CRJ PAGE: 7
DATE: 12/1/2023
calculation, following the scoresheet formula, determines the lowest permissible sentence that a trial
court may impose, absent a valid reason for departure.
34
Effect of Proposed Changes
HB 401 amends s. 934.425, F.S., to prohibit a person from knowingly:
Placing, in addition to installing, a tracking device or tracking application on another person’s
property without that person’s consent; or
Using a tracking device or tracking application to determine the location or movement of another
person or another person’s property without that person’s consent.
The bill expands the scope of prohibited conduct by capturing the unlawful placement of a tracking
device or tracking application on another person’s property, rather than just the installation of a tracking
device or tracking application on another person’s property. The change may clarify that in order to
commit a violation a person need not be required to affix a tracking device or application to a piece of
property, but also commits a violation by simply dropping such a device into another person’s property,
such as a purse or coat pocket.
Additionally the bill expands the scope of prohibited conduct by also capturing those persons who do
not install or place a tracking device or tracking application on another person’s property themselves,
but who nonetheless access and use such a device or application to determine the location or
movement of another person or another person’s property without that person’s consent.
The bill increases the penalty for a violation of s. 934.425, F.S., from a second degree misdemeanor to
a third degree felony, punishable by up to five years imprisonment and a $5,000 fine. However, the bill
does not rank the offense on the OSRC, and as such, under s. 921.0023, F.S., the offense defaults to a
level 1 offense.
Additionally, because the bill increases the penalty for a violation from a second degree misdemeanor
to a third degree felony, a law enforcement officer may be able to obtain a search warrant under s.
933.02, F.S., for property constituting evidence relevant to proving that a felony has been committed.
As such, law enforcement may be able to obtain a search warrant to access evidence such as
subscriber information and application, location, and download data from a tracking device, which may
be essential to properly investigating unlawful tracking violations.
The bill provides an effective date of October 1, 2024.
B. SECTION DIRECTORY:
Section 1: Amends s. 934.425, F.S., relating to installation of tracking devices or tracking applications;
exceptions; penalties.
Section 2: Provides an effective date of October 1, 2024.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
See Fiscal Comments.
34
If a person scores more than 44 points, the lowest permissible sentence is a specified term of months in state prison, determined by
a formula. If a person scores 44 points or fewer, the court may impose a nonprison sanction, such as a county jail sentence, probation,
or community control. S. 921.0024(2), F.S. STORAGE NAME: h0401.CRJ PAGE: 8
DATE: 12/1/2023
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
See Fiscal Comments.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
The bill may have a positive indeterminate impact on jail and prison beds by expanding the scope of
prohibited conduct under s. 934.425, F.S., and increasing the penalty for a violation from a second
degree misdemeanor to a third degree felony, which may result in longer jail sentences and new prison
admissions.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES