HB4793 103RD GENERAL ASSEMBLY

LRB103 37582 RLC 67708 b

103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
HB4793

Introduced 2/6/2024, by Rep. Anna Moeller

SYNOPSIS AS INTRODUCED:

See Index

Amends the Criminal Code of 2012. Provides that in connection with the investigation of an offense under the Code, or a pending matter charging an offense under the Code, a court shall have jurisdiction over a foreign public or private corporation, partnership, unincorporated association, or other non-governmental entity that transacts business within the State to issue a subpoena, search warrant, or court order for the production of communications, records, or other information and to enforce compliance. Amends the Code of Criminal Procedure of 1963. Establishes procedures for serving a search warrant upon foreign corporations that are electronic communication services and remote computing services allowing a search for records that are in the actual or constructive possession of a foreign corporation that provides electronic communication services or remote computing services to the general public, if those records would reveal: (1) the identity of the customers using those services; (2) data stored by, or on behalf of, the customer; (3) the customer's usage of those services; (4) the recipient or destination of communications sent to or from those customers; or (5) the content of those communications. Provides that, when properly served with a search warrant issued by an Illinois court, a foreign corporation subject to provision shall provide to the applicant all records sought pursuant to that warrant within 8 business days of receipt, including those records maintained or located outside the State. Provides that a foreign corporation seeking to quash the warrant must seek relief from the court that issued the warrant within the time required for production of records. Provides that the issuing court shall hear and decide that motion no later than 8 days after the motion is filed. Provides that no cause of action shall lie against any foreign or Illinois corporation subject to this Section, its officers, employees, agents, or other specified persons for providing records, information, facilities, or assistance in accordance with the terms of a warrant issued pursuant to the provision. Provides that the provision does not apply to corporations that do not provide electronic communication services or remote computing services to the general public.

A BILL FOR

AN ACT concerning criminal law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Criminal Code of 2012 is amended by adding Section 1-5.1 as follows:

(720 ILCS 5/1-5.1 new)

Sec. 1-5.1. Jurisdiction pertaining to records of stored communications kept by foreign business entities.

(a) In connection with the investigation of an offense under this Code, or a pending matter charging an offense under this Code, a court shall have jurisdiction over a foreign public or private corporation, partnership, unincorporated association, or other non-governmental entity that transacts business within this State:

(1) to issue a subpoena, grand jury subpoena, administrative subpoena, search warrant, or court order for the production of communications, records, or other information, as provided in 18 U.S.C. 2703 and Section 115-17b of the Code of Criminal Procedure of 1963;

(2) to issue a subpoena or grand jury subpoena for testimony of a custodian of records of the entity, regarding information described in paragraph (1). An entity that complies with a subpoena under this Section may petition the court for reimbursement in the amounts permitted in Section 4.3 of the Circuit Courts Act for a custodian who resides within this State, and the amounts permitted in Section 3 of the Uniform Act to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings for a custodian who resides outside of this State; and

(3) to enforce compliance with legal process described in this Section issued by a court, or a subpoena issued by a grand jury, or an administrative subpoena issued by a State's Attorney or the Attorney General, through contempt of court or any other method provided by law.

(b) Service of legal process pursuant to this Section may be completed by delivery to a registered agent filed with the Secretary of State, or any other manner authorized by law.

(c) An entity served with process under paragraph (1) of subsection (a) shall produce the information sought therein within 5 business days of receipt. A court may require production in less than 5 business days upon finding that faster compliance is necessary to avoid an adverse result. A court may reasonably extend the time allowed for production upon finding that the entity has shown good cause, and that an extension of time will not cause an adverse result. For purposes of this Section, an "adverse result" is one that endangers an individual's life or physical safety, or is likely to result in flight from prosecution, destruction or loss of evidence, intimidation of potential witnesses, serious jeopardy to an investigation, or undue delay of trial.

(d) Objections or motions to quash process described in this Section shall be filed and heard by the issuing court, or for grand jury and administrative subpoenas, by a court in the county to which the subpoena is to be returned.

(e) The following entities shall be deemed to have consented to jurisdiction and service as described in this Section:

(1) a foreign corporation that, on or after the effective date of this amendatory Act of the 103rd General Assembly:

(A) files with the Secretary of State an application for authority to transact business within this State pursuant to the Business Corporation Act; or

(B) having been previously authorized by the Secretary of State, files an annual report pursuant to the Business Corporation Act of 1983;

(2) a foreign limited liability company that, on or after the effective date of this amendatory Act of the 103rd General Assembly:

(A) files with the Secretary of State an application for admission to transact business within this State pursuant to the Limited Liability Company Act; or

(B) having been previously authorized by the Secretary of State, files an annual report pursuant to the Limited Liability Company Act;

(3) a foreign limited partnership that, on or after the effective date of this amendatory Act of the 103rd General Assembly, files with the Secretary of State a statement of foreign qualification or renewal statement pursuant to the Uniform Partnership Act (1997); and

(4) a foreign limited liability partnership that, on or after the effective date of this amendatory Act of the 103rd General Assembly:

(A) files with the Secretary of State an application for a certificate of authority to transact business within this State pursuant to the Uniform Limited Partnership Act (2001); or

(B) having been previously authorized by the Secretary of State, files an annual report pursuant to the Uniform Limited Partnership Act (2001).

(f) This Section shall not be construed to limit jurisdiction under any other basis otherwise provided by law.

Section 10. The Code of Criminal Procedure of 1963 is amended by adding Section 108-4.5 as follows:

(725 ILCS 5/108-4.5 new)

Sec. 108-4.5. Foreign electronic communication services and remote computing services.

(a) In this Section:

"Adverse result" occurs when notification of the existence of a search warrant results in:

(1) danger to the life or physical safety of an individual;

(2) a flight from prosecution;

(3) the destruction of or tampering with evidence;

(4) the intimidation of potential witnesses; or

(5) serious jeopardy to an investigation or undue delay of a trial.

"Applicant" means a peace officer as defined in Section 2-13 of the Criminal Code of 2012 to whom a search warrant is issued pursuant to this Section.

"Electronic communication services" and "remote computing services" shall be construed in accordance with 18 U.S.C. 2701 through 2711.

"Foreign corporation" has the meaning ascribed to it in Section 1.80 of the Business Corporation Act of 1983.

"Illinois corporation" means any corporation or other entity that is subject to Section 5.25 of the Business Corporation Act of 1983, excluding foreign corporations.

"Properly served" means that a search warrant has been delivered by hand, or in a manner reasonably allowing for proof of delivery if delivered by United States mail, overnight delivery service, or facsimile to a person or entity listed in Section 5.25 of the Business Corporation Act of 1983 or covered by this Section.

(b) The following provisions apply to any search warrant issued under this Section allowing a search for records that are in the actual or constructive possession of a foreign corporation that provides electronic communication services or remote computing services to the general public, if those records would reveal:

(1) the identity of the customers using those services;

(2) data stored by, or on behalf of, the customer;

(3) the customer's usage of those services;

(4) the recipient or destination of communications sent to or from those customers; or

(5) the content of those communications.

(c) When properly served with a search warrant issued by an Illinois court, a foreign corporation subject to this Section shall provide to the applicant, within 8 business days of receipt, all records sought pursuant to that warrant, including those records maintained or located outside this State.

(d) If the applicant makes a showing and the judge finds that failure to produce records within less than 8 business days would cause an adverse result, the warrant may require production of records within less than 8 business days. A court may reasonably extend the time required for production of the records upon finding that the foreign corporation has shown good cause for that extension and that an extension of time would not cause an adverse result.

(e) A foreign corporation seeking to quash the warrant must seek relief from the court that issued the warrant within the time required for production of records under this Section. The issuing court shall hear and decide that motion no later than 8 court days after the motion is filed.

(f) The foreign corporation shall verify the authenticity of records that it produces by providing a written affidavit or statement to that effect.

(g) An Illinois corporation that provides electronic communication services or remote computing services to the general public, when served with a warrant issued by another state to produce records that would reveal:

(1) the identity of the customers using those services;

(2) data stored by, or on behalf of, the customer;

(3) the customer's usage of those services;

(4) the recipient or destination of communications sent to or from those customers; or

(5) the content of those communications, shall produce those records as if that warrant had been issued by an Illinois court.

(h) No cause of action shall lie against any foreign or Illinois corporation subject to this Section, its officers, employees, agents, or other specified persons for providing records, information, facilities, or assistance in accordance with the terms of a warrant issued pursuant to this Section.

(i) This Section does not apply to corporations that do not provide electronic communication services or remote computing services to the general public.