HOUSE OF REPRESENTATIVES STAFF ANALYSIS BILL #: CS/CS/CS/HB 275 Offenses Involving Critical Infrastructure SPONSOR(S): Judiciary Committee, Energy, Communications & Cybersecurity Subcommittee, Criminal Justice Subcommittee, Canady and others TIED BILLS: IDEN./SIM. BILLS: CS/SB 340 REFERENCE ACTION ANALYST STAFF DIRECTOR or BUDGET/POLICY CHIEF 1) Criminal Justice Subcommittee 16 Y, 0 N, As CS Padgett Hall 2) Energy, Communications & Cybersecurity 15 Y, 0 N, As CS Bauldree Keating Subcommittee 3) Judiciary Committee 21 Y, 0 N, As CS Padgett Kramer SUMMARY ANALYSIS CS/CS/CS/HB 275 creates s. 812.141, F.S., to create new criminal offenses involving critical infrastructure, including: Knowingly and intentionally improperly tampering with critical infrastructure that results in damage to such critical infrastructure that is $200 or more, or results in the interruption or impairment of the function of critical infrastructure which costs $200 or more in labor and supplies to restore, punishable as a second degree felony; Trespassing on critical infrastructure as to which notice against entering or remaining in is given, punisha ble as a third degree felony; Accessing a computer, computer system, computer network, or electronic device owned, operated, or used by a critical infrastructure entity without authorization, punishable as a third degree felony; and Physically tampering with or inserting a computer contaminant into a computer, computer system, computer network, or electronic device that causes a disruption in any service delivered by a critical infrastructure entity, punishable as a seco nd degree felony. The bill defines “critical infrastructure” to mean any linear asset, or any of the following for which the owner or operator thereof has employed measures designed to exclude unauthorized persons, including, but not limited to, fences, barriers, guard posts, or signs prohibiting trespass: An electric power generation, transmission, or distribution facility, or a substation, a switching station, or an electrical control center. A chemical or rubber manufacturing or storage facility or a mining facility. A natural gas or compressed gas compressor station, or storage facility. A gas processing plant, including a plant used in the processing, treatment, or fractionation of natural gas. A liquid natural gas or propane gas terminal or storage facility with a capacity of 4,000 gal lons or more. A wireless or wired communications facility, including the tower, antennae, support structures, and ground -based equipment. A water intake structure, water treatment facility, wastewater treatment plant, pump station, or lift station. A seaport listed in s. 311.09, F.S., an airport as defined in s. 330.27, F.S., or spaceport territory as defined in s. 331.303, F.S . A railroad switching yard, trucking terminal, or other freight transportation facility. A transmission facility used by a federally licensed radio or television station. A military base or facility or a civilian defense industrial base conducting research and development of military weapons systems, subsystems, components, or parts. A dam as defined in s. 373.403, F.S., or other specified water control structures that are designed to maintain or control the level of navigable waterways. A person who is found in a civil action to have improperly tampered with critical infrastructure based on a conviction is civilly liable to the owner or operator in an amount equal to three times the amount of the actual damage sustained by the owner or operator, or three times any claim the owner or operator was required to pay, whichever is greater, for any personal injury, wrongful death, or property damage caused by the act. The Criminal Justice Impact Conference considered a prior version of the bill that is substantially similar to CS/CS/CS/HB 275 on February 12, 2024, and determined that the bill may have a positive indeterminate prison and jail bed impact by creating new felony offenses related to critical infrastructure. The bill provides an effective date of July 1, 2024. FULL ANALYSIS This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives . STORAGE NAME: h0275d.JDC DATE: 2/14/2024 I. SUBSTANTIVE ANALYSIS A. EFFECT OF PROPOSED CHANGES: Background Damage to Critical Infrastructure According to the Cybersecurity and Infrastructure Security Agency (CISA) within the United States Department of Homeland Security, critical infrastructure are “those assets, systems, and networks that provide functions necessary for our way of life,” and that are “…considered so vital to the United States that their incapacitation or destruction would have a debilitating effect on security, national economic security, national public health or safety, or any combination thereof.”1 CISA broadly classifies critical infrastructure into the following sectors: chemicals; commercial facilities; communications; critical manufacturing; dams; defense industrial bases; emergency services; energy; financial services; food and agriculture; government facilities; healthcare and public health; information technology; nuclear reactors, materials, and waste; transportation systems; and water and wastewater systems. 2 Due to the vast number of critical infrastructure facilities, the difficulty in securing and monitoring such facilities, and the widespread effects that damage to such facilities can cause, critical infrastructure facilities have become a frequent target of both physical and cyber attacks in recent years. 3 In 2022, physical security incidents against electric infrastructure, such as vandalism, trespassing, and theft, increased 70 percent from the previous year.4 In September 2022, six separate “intrusion events” occurred at Duke Energy electric substations in central Florida, resulting in several brief power outages.5 On December 3, 2022, gunfire damaged an electrical substation in Moore County, North Carolina, leaving approximately 45,000 people without power and resulting in the death of one person. 6 Florida Laws Prohibiting Damage to Critical Infrastructure Under Florida law, there is not a specific criminal offense prohibiting a person from tampering with critical infrastructure. However, a person who tampers with such infrastructure either by intentionally causing damage or illegally entering on the property upon which the critical infrastructure is located could be prosecuted for committing other criminal offenses, such as criminal mischief or trespass. Criminal Mischief A person commits criminal mischief by willfully and maliciously injuring or damaging the property of another, including by vandalism or graffiti.7 The penalty for criminal mischief generally corresponds to the value of the damage: Value of Damage 8 Penalty ≤ $200 Second degree misdemeanor9 1 Cybersecurity and Infrastructure Security Agency, Critical Infrastructure Security and Resilience, https://www.cisa.gov/topics/critical- infrastructure-security-and-resilience (last visited Feb. 14, 2024). 2 Cybersecurity and Infrastructure Security Agency, Critical Infrastructure Sectors, https://www.cisa.gov/topics/critical-infrastructure- security-and-resilience/critical-infrastructure-sectors (last visited Feb. 14, 2024). 3 Dinah Voyles Pulver and Grace Hauck, Attacks on power sub stations are growing. Why is the electric grid so hard to protect?, USA Today (Dec. 30, 2022) https://www.usatoday.com/story/news/nation/2022/12/30/power-grid-attacks-increasing/10960265002/ (last visited Feb. 14, 2024). 4 National Conference of State Legislatures, Human-Driven Physical Threats to Energy Infrastructure, https://www.ncsl.org/energy/human-driven-physical-threats-to-energy-infrastructure (last visited Feb. 14, 2024). 5 Andrew Dorn and Evan Lambert, Report shows 6 “intrusions” at power stations in Florida, WDHN (Dec. 8, 2022), https://www.wdhn.com/news/report-shows-6-intrusions-at-power-stations-in-florida/ (last visited Feb. 14, 2024). 6 John Nagy and Jonathan Bym, Still no arrests, b ut warrants reveal more details on Moore County power grid attacks, The News & Observer (Dec. 16, 2023), https://www.newsobserver.com./news/state/north-carolina/article283121923.html (last visited Feb. 14, 2024). 7 S. 806.13(1)(a), F.S. 8 S. 806.13(1)(b), F.S. 9 A second degree misdemeanor is punishable by up to 60 days in jail and a $500 fine. Ss. 775.082 or 775.083, F.S. STORAGE NAME: h0275d.JDC PAGE: 2 DATE: 2/14/2024 > $200 but ≤ $1,000 First degree misdemeanor10 > $1,000 Third degree felony11 Criminal mischief may also be enhanced to a third degree felony based on a prior criminal mischief conviction12 or the nature of the property damaged, including when a person damages: Property that results in the interruption or impairment of a business operation or public communication, transportation, supply of water, gas or power, or other public service which costs $1,000 or more in labor and supplies to restore. 13 A church, synagogue, mosque, or other place of worship, or a religious article therein, if the damage is valued at greater than $200.14 A memorial15 or historic property,16 if the damage is valued at greater than $200.17 A public telephone, regardless of the value of the damage. 18 A sexually violent predator detention or commitment facility, if the damage is valued at greater than $200.19 Trespass A person commits the offense of trespass on property other than a structure 20 or conveyance,21 punishable as a first degree misdemeanor, if he or she, without being authorized, licensed, or invited, willfully enters upon or remains in any property, other than a structure or conveyance: As to which notice against entering or remaining is given, either by actual communication to the offender or by posting, fencing, or cultivation; or If the property is the unenclosed curtilage22 of a dwelling and the offender enters or remains with the intent to commit an offense thereon, other than the offense of trespass. 23 10 A first degree misdemeanor is punishable by up to one year in jail and a $1,000 fine. Ss. 775.082 or 775.083, F.S. 11 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 . 12 S. 806.13(1)(b)4., F.S. 13 S. 806.13(1)(b)3., F.S. 14 S. 806.13(2), F.S. 15 “Memorial” means a plaque, statue, marker, flag, banner, cenotaph, religious symbol, painting, seal, tombstone, structure nam e, or display that is constructed and located with the intent of be ing permanently displayed or perpetually maintained; is dedicated to a historical person, an entity, an event, or a series of events; and honors or recounts the military service of any past or pre sent United States Armed Forces military personnel, or the past or present public service of a resident of the geographical area comprising the state or the United States. The term includes, but is not limited to, the following memorials established under ch. 265, F.S.: Florida Women's Hall of Fame. Florida Medal of Honor Wall. Florida Veterans' Hall of Fame. POW-MIA Chair of Honor Memorial. Florida Veterans' Walk of Honor and Florida Veterans' Memorial Garden. Florida Law Enforcement Officers' Hall of Fame. Florida Holocaust Memorial. Florida Slavery Memorial. Any other memorial located within the Capitol Complex, including, but not limited to, Waller Park. S. 806.135(1)(b), F.S. 16 “Historic property” means any building, structure, site, or object that has been officially designated as a historic building, historic structure, historic site, or historic object through a federal, state, or local designation program. S. 806.135(1)(a), F.S. 17 S. 806.13(3), F.S. 18 S. 806.13(4), F.S. 19 S. 806.13(5), F.S. 20 “Structure” means a building of any kind, either temporary or permanent, which has a roof over it, together with the curtilag e thereof. However, during the time of a state of emergency declared by executive order or proclamation of the Governor under ch. 252, F.S., and within the area covered by such executive order or proclamation and for purposes of ss. 810.02 and 810.08, F.S., only, the term means a building of any kind or such portions or remnants thereof as exist at the origi nal site, regardless of absence of a wall or roof. 21 “Conveyance” means any motor vehicle, ship, vessel, railroad vehicle or car, trailer, aircraft, or sleeping car; and “to ente r a conveyance” includes taking apart any portion of the conveyance. However, during the time of a state of emergency declared by executive order or proclamation of the Governor under ch. 252, F.S., and within the area covered by such executive order or proclamation and for purposes of ss. 810.02 and 810.08, F.S., only, the term “conveyance” means a motor vehicle, ship, vesse l, railroad vehicle or car, trailer, aircraft, or sleeping car or such portions thereof as exist. 22 “Unenclosed curtilage” means the unenclosed land or grounds, and any outbuildings, that are directly and intimately adjacent to and connected with the dwelling and necessary, convenient, and habitually used in connection with that dwelling. S. 810.09(1)(b), F.S. 23 S. 810.09(1)(a), F.S. STORAGE NAME: h0275d.JDC PAGE: 3 DATE: 2/14/2024 A trespass offense is enhanced to a third degree felony if: A person becomes armed with a firearm or other dangerous weapon during the commission of the offense;24 or The property trespassed upon is any of the following and the property complies with specified posting of notice requirements: o A construction site;25 o Commercial horticulture property;26 o An agricultural site for testing or research purposes; 27 o A certified domestic violence center;28 o An agricultural chemicals manufacturing facility;29 or o The operational area of an airport, if the offender trespasses with the intent to injure another person, damage property, or impede the operation or use of an aircraft, runway, taxiway, ramp, or apron area.30 Offenses Against Computers Under s. 815.06, F.S., a person commits an offense against users of computers, computer systems, computers networks, or electronic devices if he or she willfully, knowingly, and without authorization or exceeding authorization: Accesses or causes to be accessed any computer, 31 computer system,32 computer network,33 or electronic device34 with knowledge that such access is unauthorized or the manner of use exceeds authorization; Disrupts or denies or causes the denial of the ability to transmit data to or from an authorized user of a computer, computer system, computer network, or electronic device, which, in whole or in part, is owned by, under contract to, or operated for, on behalf of, or in conjunction with another; Destroys, takes, injures, or damages equipment or supplies used or intended to be used in a computer, computer system, computer network, or electronic device; Destroys, injures, or damages any computer, computer system, computer network, or electronic device; Introduces any computer containment into any computer, computer system, computer network, or electronic device; or Engages in audio or video surveillance of an individual by accessing any inherent feature or component of a computer, computer system, computer network, or electronic device, including accessing the data or information of a computer, computer system, computer network, or electronic device that is stored by a third party. Generally, a person who commits a violation of s. 815.06, F.S., commits a third degree felony. A person commits a second degree felony if he or she commits a violation of s. 815.06, F.S., that interrupts or 24 S. 810.09(2)(c), F.S. 25 S. 810.09(2)(d), F.S. 26 S. 810.09(2)(e), F.S. 27 S. 810.09(2)(f), F.S. 28 S. 810.09(2)(g), F.S. 29 S. 810.09(2)(i), F.S. 30 S. 810.09(2)(j), F.S. 31 “Computer” means an internally programmed, automatic device that performs data processing. S. 815.03(2), F.S. 32 “Computer system” means a device or collection of devices, including support devices, one or more of which contain computer programs, electronic instructions, or input data and output data, and which perform functions, including, but not limited to, logic, arithmetic, data storage, retrieval, communication, or control. The term does not include ca lculators that are not programmable and that are not capable of being used in conjunction with external files. S. 815.03(7), F.S.