HB3477enr 95TH GENERAL ASSEMBLY



 


 
HB3477 Enrolled LRB095 09074 RLC 29266 b

1     AN ACT concerning criminal law.
 
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
 
4     Section 5. The Criminal Code of 1961 is amended by adding
5 Section 16D-5.5 as follows:
 
6     (720 ILCS 5/16D-5.5 new)
7     Sec. 16D-5.5. Unlawful use of encryption.
8     (a) For the purpose of this Section:
9         "Access" means to intercept, instruct, communicate
10     with, store data in, retrieve from, or otherwise make use
11     of any resources of a computer, network, or data.
12         "Computer" means an electronic device which performs
13     logical, arithmetic, and memory functions by manipulations
14     of electronic or magnetic impulses and includes all
15     equipment related to the computer in a system or network.
16         "Computer contaminant" means any data, information,
17     image, program, signal, or sound that is designated or has
18     the capability to: (1) contaminate, corrupt, consume,
19     damage, destroy, disrupt, modify, record, or transmit; or
20     (2) cause to be contaminated, corrupted, consumed,
21     damaged, destroyed, disrupted, modified, recorded, or
22     transmitted, any other data, information, image, program,
23     signal, or sound contained in a computer, system, or

 

 

HB3477 Enrolled - 2 - LRB095 09074 RLC 29266 b

1     network without the knowledge or consent of the person who
2     owns the other data, information, image, program, signal,
3     or sound or the computer, system, or network.
4         "Computer contaminant" includes, without limitation:
5     (1) a virus, worm, or Trojan horse; (2) spyware that tracks
6     computer activity and is capable of recording and
7     transmitting such information to third parties; or (3) any
8     other similar data, information, image, program, signal,
9     or sound that is designed or has the capability to prevent,
10     impede, delay, or disrupt the normal operation or use of
11     any component, device, equipment, system, or network.
12         "Data" means a representation in any form of
13     information, knowledge, facts, concepts, or instructions
14     which is being prepared or has been formally prepared and
15     is intended to be processed, is being processed or has been
16     processed in a system or network.
17         "Encryption" means the use of any protective or
18     disruptive measure, including, without limitation,
19     cryptography, enciphering, encoding, or a computer
20     contaminant, to: (1) prevent, impede, delay, or disrupt
21     access to any data, information, image, program, signal, or
22     sound; (2) cause or make any data, information, image,
23     program, signal, or sound unintelligible or unusable; or
24     (3) prevent, impede, delay, or disrupt the normal operation
25     or use of any component, device, equipment, system, or
26     network.

 

 

HB3477 Enrolled - 3 - LRB095 09074 RLC 29266 b

1         "Network" means a set of related, remotely connected
2     devices and facilities, including more than one system,
3     with the capability to transmit data among any of the
4     devices and facilities. The term includes, without
5     limitation, a local, regional, or global computer network.
6         "Program" means an ordered set of data representing
7     coded instructions or statements which can be executed by a
8     computer and cause the computer to perform one or more
9     tasks.
10         "System" means a set of related equipment, whether or
11     not connected, which is used with or for a computer.
12     (b) A person shall not knowingly use or attempt to use
13 encryption, directly or indirectly, to:
14         (1) commit, facilitate, further, or promote any
15     criminal offense;
16         (2) aid, assist, or encourage another person to commit
17     any criminal offense;
18         (3) conceal evidence of the commission of any criminal
19     offense; or
20         (4) conceal or protect the identity of a person who has
21     committed any criminal offense.
22     (c) Telecommunications carriers and information service
23 providers are not liable under this Section, except for willful
24 and wanton misconduct, for providing encryption services used
25 by others in violation of this Section.
26     (d) Sentence. A person who violates this Section is guilty

 

 

HB3477 Enrolled - 4 - LRB095 09074 RLC 29266 b

1 of a Class A misdemeanor, unless the encryption was used or
2 attempted to be used to commit an offense for which a greater
3 penalty is provided by law. If the encryption was used or
4 attempted to be used to commit an offense for which a greater
5 penalty is provided by law, the person shall be punished as
6 prescribed by law for that offense.
7     (e) A person who violates this Section commits a criminal
8 offense that is separate and distinct from any other criminal
9 offense and may be prosecuted and convicted under this Section
10 whether or not the person or any other person is or has been
11 prosecuted or convicted for any other criminal offense arising
12 out of the same facts as the violation of this Section.
 
13     Section 10. The Unified Code of Corrections is amended by
14 changing Section 5-5-3.2 as follows:
 
15     (730 ILCS 5/5-5-3.2)  (from Ch. 38, par. 1005-5-3.2)
16     Sec. 5-5-3.2. Factors in Aggravation.
17     (a) The following factors shall be accorded weight in favor
18 of imposing a term of imprisonment or may be considered by the
19 court as reasons to impose a more severe sentence under Section
20 5-8-1:
21         (1) the defendant's conduct caused or threatened
22     serious harm;
23         (2) the defendant received compensation for committing
24     the offense;

 

 

HB3477 Enrolled - 5 - LRB095 09074 RLC 29266 b

1         (3) the defendant has a history of prior delinquency or
2     criminal activity;
3         (4) the defendant, by the duties of his office or by
4     his position, was obliged to prevent the particular offense
5     committed or to bring the offenders committing it to
6     justice;
7         (5) the defendant held public office at the time of the
8     offense, and the offense related to the conduct of that
9     office;
10         (6) the defendant utilized his professional reputation
11     or position in the community to commit the offense, or to
12     afford him an easier means of committing it;
13         (7) the sentence is necessary to deter others from
14     committing the same crime;
15         (8) the defendant committed the offense against a
16     person 60 years of age or older or such person's property;
17         (9) the defendant committed the offense against a
18     person who is physically handicapped or such person's
19     property;
20         (10) by reason of another individual's actual or
21     perceived race, color, creed, religion, ancestry, gender,
22     sexual orientation, physical or mental disability, or
23     national origin, the defendant committed the offense
24     against (i) the person or property of that individual; (ii)
25     the person or property of a person who has an association
26     with, is married to, or has a friendship with the other

 

 

HB3477 Enrolled - 6 - LRB095 09074 RLC 29266 b

1     individual; or (iii) the person or property of a relative
2     (by blood or marriage) of a person described in clause (i)
3     or (ii). For the purposes of this Section, "sexual
4     orientation" means heterosexuality, homosexuality, or
5     bisexuality;
6         (11) the offense took place in a place of worship or on
7     the grounds of a place of worship, immediately prior to,
8     during or immediately following worship services. For
9     purposes of this subparagraph, "place of worship" shall
10     mean any church, synagogue or other building, structure or
11     place used primarily for religious worship;
12         (12) the defendant was convicted of a felony committed
13     while he was released on bail or his own recognizance
14     pending trial for a prior felony and was convicted of such
15     prior felony, or the defendant was convicted of a felony
16     committed while he was serving a period of probation,
17     conditional discharge, or mandatory supervised release
18     under subsection (d) of Section 5-8-1 for a prior felony;
19         (13) the defendant committed or attempted to commit a
20     felony while he was wearing a bulletproof vest. For the
21     purposes of this paragraph (13), a bulletproof vest is any
22     device which is designed for the purpose of protecting the
23     wearer from bullets, shot or other lethal projectiles;
24         (14) the defendant held a position of trust or
25     supervision such as, but not limited to, family member as
26     defined in Section 12-12 of the Criminal Code of 1961,

 

 

HB3477 Enrolled - 7 - LRB095 09074 RLC 29266 b

1     teacher, scout leader, baby sitter, or day care worker, in
2     relation to a victim under 18 years of age, and the
3     defendant committed an offense in violation of Section
4     11-6, 11-11, 11-15.1, 11-19.1, 11-19.2, 11-20.1, 12-13,
5     12-14, 12-14.1, 12-15 or 12-16 of the Criminal Code of 1961
6     against that victim;
7         (15) the defendant committed an offense related to the
8     activities of an organized gang. For the purposes of this
9     factor, "organized gang" has the meaning ascribed to it in
10     Section 10 of the Streetgang Terrorism Omnibus Prevention
11     Act;
12         (16) the defendant committed an offense in violation of
13     one of the following Sections while in a school, regardless
14     of the time of day or time of year; on any conveyance
15     owned, leased, or contracted by a school to transport
16     students to or from school or a school related activity; on
17     the real property of a school; or on a public way within
18     1,000 feet of the real property comprising any school:
19     Section 10-1, 10-2, 10-5, 11-15.1, 11-17.1, 11-18.1,
20     11-19.1, 11-19.2, 12-2, 12-4, 12-4.1, 12-4.2, 12-4.3,
21     12-6, 12-6.1, 12-13, 12-14, 12-14.1, 12-15, 12-16, 18-2, or
22     33A-2 of the Criminal Code of 1961;
23         (16.5) the defendant committed an offense in violation
24     of one of the following Sections while in a day care
25     center, regardless of the time of day or time of year; on
26     the real property of a day care center, regardless of the

 

 

HB3477 Enrolled - 8 - LRB095 09074 RLC 29266 b

1     time of day or time of year; or on a public way within
2     1,000 feet of the real property comprising any day care
3     center, regardless of the time of day or time of year:
4     Section 10-1, 10-2, 10-5, 11-15.1, 11-17.1, 11-18.1,
5     11-19.1, 11-19.2, 12-2, 12-4, 12-4.1, 12-4.2, 12-4.3,
6     12-6, 12-6.1, 12-13, 12-14, 12-14.1, 12-15, 12-16, 18-2, or
7     33A-2 of the Criminal Code of 1961;
8         (17) the defendant committed the offense by reason of
9     any person's activity as a community policing volunteer or
10     to prevent any person from engaging in activity as a
11     community policing volunteer. For the purpose of this
12     Section, "community policing volunteer" has the meaning
13     ascribed to it in Section 2-3.5 of the Criminal Code of
14     1961;
15         (18) the defendant committed the offense in a nursing
16     home or on the real property comprising a nursing home. For
17     the purposes of this paragraph (18), "nursing home" means a
18     skilled nursing or intermediate long term care facility
19     that is subject to license by the Illinois Department of
20     Public Health under the Nursing Home Care Act;
21         (19) the defendant was a federally licensed firearm
22     dealer and was previously convicted of a violation of
23     subsection (a) of Section 3 of the Firearm Owners
24     Identification Card Act and has now committed either a
25     felony violation of the Firearm Owners Identification Card
26     Act or an act of armed violence while armed with a firearm;

 

 

HB3477 Enrolled - 9 - LRB095 09074 RLC 29266 b

1         (20) the defendant (i) committed the offense of
2     reckless homicide under Section 9-3 of the Criminal Code of
3     1961 or the offense of driving under the influence of
4     alcohol, other drug or drugs, intoxicating compound or
5     compounds or any combination thereof under Section 11-501
6     of the Illinois Vehicle Code or a similar provision of a
7     local ordinance and (ii) was operating a motor vehicle in
8     excess of 20 miles per hour over the posted speed limit as
9     provided in Article VI of Chapter 11 of the Illinois
10     Vehicle Code; or
11         (21) the defendant (i) committed the offense of
12     reckless driving or aggravated reckless driving under
13     Section 11-503 of the Illinois Vehicle Code and (ii) was
14     operating a motor vehicle in excess of 20 miles per hour
15     over the posted speed limit as provided in Article VI of
16     Chapter 11 of the Illinois Vehicle Code; or .
17         (22) the defendant committed any offense under Section
18     11-20.1 of the Criminal Code of 1961 and possessed 100 or
19     more images.
20     For the purposes of this Section:
21     "School" is defined as a public or private elementary or
22 secondary school, community college, college, or university.
23     "Day care center" means a public or private State certified
24 and licensed day care center as defined in Section 2.09 of the
25 Child Care Act of 1969 that displays a sign in plain view
26 stating that the property is a day care center.

 

 

HB3477 Enrolled - 10 - LRB095 09074 RLC 29266 b

1     (b) The following factors may be considered by the court as
2 reasons to impose an extended term sentence under Section 5-8-2
3 upon any offender:
4         (1) When a defendant is convicted of any felony, after
5     having been previously convicted in Illinois or any other
6     jurisdiction of the same or similar class felony or greater
7     class felony, when such conviction has occurred within 10
8     years after the previous conviction, excluding time spent
9     in custody, and such charges are separately brought and
10     tried and arise out of different series of acts; or
11         (2) When a defendant is convicted of any felony and the
12     court finds that the offense was accompanied by
13     exceptionally brutal or heinous behavior indicative of
14     wanton cruelty; or
15         (3) When a defendant is convicted of voluntary
16     manslaughter, second degree murder, involuntary
17     manslaughter or reckless homicide in which the defendant
18     has been convicted of causing the death of more than one
19     individual; or
20         (4) When a defendant is convicted of any felony
21     committed against:
22             (i) a person under 12 years of age at the time of
23         the offense or such person's property;
24             (ii) a person 60 years of age or older at the time
25         of the offense or such person's property; or
26             (iii) a person physically handicapped at the time

 

 

HB3477 Enrolled - 11 - LRB095 09074 RLC 29266 b

1         of the offense or such person's property; or
2         (5) In the case of a defendant convicted of aggravated
3     criminal sexual assault or criminal sexual assault, when
4     the court finds that aggravated criminal sexual assault or
5     criminal sexual assault was also committed on the same
6     victim by one or more other individuals, and the defendant
7     voluntarily participated in the crime with the knowledge of
8     the participation of the others in the crime, and the
9     commission of the crime was part of a single course of
10     conduct during which there was no substantial change in the
11     nature of the criminal objective; or
12         (6) When a defendant is convicted of any felony and the
13     offense involved any of the following types of specific
14     misconduct committed as part of a ceremony, rite,
15     initiation, observance, performance, practice or activity
16     of any actual or ostensible religious, fraternal, or social
17     group:
18             (i) the brutalizing or torturing of humans or
19         animals;
20             (ii) the theft of human corpses;
21             (iii) the kidnapping of humans;
22             (iv) the desecration of any cemetery, religious,
23         fraternal, business, governmental, educational, or
24         other building or property; or
25             (v) ritualized abuse of a child; or
26         (7) When a defendant is convicted of first degree

 

 

HB3477 Enrolled - 12 - LRB095 09074 RLC 29266 b

1     murder, after having been previously convicted in Illinois
2     of any offense listed under paragraph (c)(2) of Section
3     5-5-3, when such conviction has occurred within 10 years
4     after the previous conviction, excluding time spent in
5     custody, and such charges are separately brought and tried
6     and arise out of different series of acts; or
7         (8) When a defendant is convicted of a felony other
8     than conspiracy and the court finds that the felony was
9     committed under an agreement with 2 or more other persons
10     to commit that offense and the defendant, with respect to
11     the other individuals, occupied a position of organizer,
12     supervisor, financier, or any other position of management
13     or leadership, and the court further finds that the felony
14     committed was related to or in furtherance of the criminal
15     activities of an organized gang or was motivated by the
16     defendant's leadership in an organized gang; or
17         (9) When a defendant is convicted of a felony violation
18     of Section 24-1 of the Criminal Code of 1961 and the court
19     finds that the defendant is a member of an organized gang;
20     or
21         (10) When a defendant committed the offense using a
22     firearm with a laser sight attached to it. For purposes of
23     this paragraph (10), "laser sight" has the meaning ascribed
24     to it in Section 24.6-5 of the Criminal Code of 1961; or
25         (11) When a defendant who was at least 17 years of age
26     at the time of the commission of the offense is convicted

 

 

HB3477 Enrolled - 13 - LRB095 09074 RLC 29266 b

1     of a felony and has been previously adjudicated a
2     delinquent minor under the Juvenile Court Act of 1987 for
3     an act that if committed by an adult would be a Class X or
4     Class 1 felony when the conviction has occurred within 10
5     years after the previous adjudication, excluding time
6     spent in custody; or
7         (12) When a defendant commits an offense involving the
8     illegal manufacture of a controlled substance under
9     Section 401 of the Illinois Controlled Substances Act, the
10     illegal manufacture of methamphetamine under Section 25 of
11     the Methamphetamine Control and Community Protection Act,
12     or the illegal possession of explosives and an emergency
13     response officer in the performance of his or her duties is
14     killed or injured at the scene of the offense while
15     responding to the emergency caused by the commission of the
16     offense. In this paragraph (12), "emergency" means a
17     situation in which a person's life, health, or safety is in
18     jeopardy; and "emergency response officer" means a peace
19     officer, community policing volunteer, fireman, emergency
20     medical technician-ambulance, emergency medical
21     technician-intermediate, emergency medical
22     technician-paramedic, ambulance driver, other medical
23     assistance or first aid personnel, or hospital emergency
24     room personnel; or
25         (13) When a defendant commits any felony and the
26     defendant used, possessed, exercised control over, or

 

 

HB3477 Enrolled - 14 - LRB095 09074 RLC 29266 b

1     otherwise directed an animal to assault a law enforcement
2     officer engaged in the execution of his or her official
3     duties or in furtherance of the criminal activities of an
4     organized gang in which the defendant is engaged.
5     (b-1) For the purposes of this Section, "organized gang"
6 has the meaning ascribed to it in Section 10 of the Illinois
7 Streetgang Terrorism Omnibus Prevention Act.
8     (c) The court may impose an extended term sentence under
9 Section 5-8-2 upon any offender who was convicted of aggravated
10 criminal sexual assault or predatory criminal sexual assault of
11 a child under subsection (a)(1) of Section 12-14.1 of the
12 Criminal Code of 1961 where the victim was under 18 years of
13 age at the time of the commission of the offense.
14     (d) The court may impose an extended term sentence under
15 Section 5-8-2 upon any offender who was convicted of unlawful
16 use of weapons under Section 24-1 of the Criminal Code of 1961
17 for possessing a weapon that is not readily distinguishable as
18 one of the weapons enumerated in Section 24-1 of the Criminal
19 Code of 1961.
20 (Source: P.A. 94-131, eff. 7-7-05; 94-375, eff. 1-1-06; 94-556,
21 eff. 9-11-05; 94-819, eff. 5-31-06.)