Full Text of HB3958 96th General Assembly
HB3958 96TH GENERAL ASSEMBLY
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96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010 HB3958
Introduced 2/26/2009, by Rep. Jim Sacia SYNOPSIS AS INTRODUCED: |
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Amends the Criminal Code of 1961. Exempts from an eavesdropping violation recording of a conversation made by or at the request of a person, not a law enforcement officer or agent of a law enforcement officer, who is a party to the conversation, under reasonable suspicion that another party to the conversation is committing, is about to commit, or has committed a criminal offense which is a violation of any provision of the Official Misconduct, Deception Relating to Certification of Disadvantaged Business Enterprises, or Public Contracts Article of the Code and there is reason to believe that evidence of the criminal offense may be obtained by the recording. Effective immediately.
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A BILL FOR
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HB3958 |
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| AN ACT concerning criminal law.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Criminal Code of 1961 is amended by changing | 5 |
| Section 14-3 as follows:
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| (720 ILCS 5/14-3)
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| Sec. 14-3. Exemptions. The following activities shall be
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| exempt from the provisions of this Article:
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| (a) Listening to radio, wireless and television | 10 |
| communications of
any sort where the same are publicly made;
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| (b) Hearing conversation when heard by employees of any | 12 |
| common
carrier by wire incidental to the normal course of their | 13 |
| employment in
the operation, maintenance or repair of the | 14 |
| equipment of such common
carrier by wire so long as no | 15 |
| information obtained thereby is used or
divulged by the hearer;
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| (c) Any broadcast by radio, television or otherwise whether | 17 |
| it be a
broadcast or recorded for the purpose of later | 18 |
| broadcasts of any
function where the public is in attendance | 19 |
| and the conversations are
overheard incidental to the main | 20 |
| purpose for which such broadcasts are
then being made;
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| (d) Recording or listening with the aid of any device to | 22 |
| any
emergency communication made in the normal course of | 23 |
| operations by any
federal, state or local law enforcement |
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| agency or institutions dealing
in emergency services, | 2 |
| including, but not limited to, hospitals,
clinics, ambulance | 3 |
| services, fire fighting agencies, any public utility,
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| emergency repair facility, civilian defense establishment or | 5 |
| military
installation;
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| (e) Recording the proceedings of any meeting required to be | 7 |
| open by
the Open Meetings Act, as amended;
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| (f) Recording or listening with the aid of any device to | 9 |
| incoming
telephone calls of phone lines publicly listed or | 10 |
| advertised as consumer
"hotlines" by manufacturers or | 11 |
| retailers of food and drug products. Such
recordings must be | 12 |
| destroyed, erased or turned over to local law
enforcement | 13 |
| authorities within 24 hours from the time of such recording and
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| shall not be otherwise disseminated. Failure on the part of the | 15 |
| individual
or business operating any such recording or | 16 |
| listening device to comply with
the requirements of this | 17 |
| subsection shall eliminate any civil or criminal
immunity | 18 |
| conferred upon that individual or business by the operation of
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| this Section;
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| (g) With prior notification to the State's Attorney of the
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| county in which
it is to occur, recording or listening with the | 22 |
| aid of any device to any
conversation
where a law enforcement | 23 |
| officer, or any person acting at the direction of law
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| enforcement, is a party to the conversation and has consented | 25 |
| to it being
intercepted or recorded under circumstances where | 26 |
| the use of the device is
necessary for the protection of the |
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| law enforcement officer or any person
acting at the direction | 2 |
| of law enforcement, in the course of an
investigation
of a | 3 |
| forcible felony, a felony violation of the Illinois Controlled | 4 |
| Substances
Act, a felony violation of the Cannabis Control Act, | 5 |
| a felony violation of the Methamphetamine Control and Community | 6 |
| Protection Act, or any "streetgang
related" or "gang-related" | 7 |
| felony as those terms are defined in the Illinois
Streetgang | 8 |
| Terrorism Omnibus Prevention Act.
Any recording or evidence | 9 |
| derived
as the
result of this exemption shall be inadmissible | 10 |
| in any proceeding, criminal,
civil or
administrative, except | 11 |
| (i) where a party to the conversation suffers great
bodily | 12 |
| injury or is killed during such conversation, or
(ii)
when used | 13 |
| as direct impeachment of a witness concerning matters contained | 14 |
| in
the interception or recording. The Director of the
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| Department of
State Police shall issue regulations as are | 16 |
| necessary concerning the use of
devices, retention of tape | 17 |
| recordings, and reports regarding their
use;
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| (g-5) With approval of the State's Attorney of the county | 19 |
| in
which it is to occur, recording or listening with the aid of | 20 |
| any device to any
conversation where a law enforcement officer, | 21 |
| or any person acting at the
direction of law enforcement, is a | 22 |
| party to the conversation and has consented
to it being | 23 |
| intercepted or recorded in the course of an investigation of | 24 |
| any
offense defined in Article 29D of this Code.
In all such | 25 |
| cases, an application for an order approving
the previous or | 26 |
| continuing use of an eavesdropping
device must be made within |
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| 48 hours of the commencement of
such use. In the absence of | 2 |
| such an order, or upon its denial,
any continuing use shall | 3 |
| immediately terminate.
The Director of
State Police shall issue | 4 |
| rules as are necessary concerning the use of
devices, retention | 5 |
| of tape recordings, and reports regarding their use.
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| Any recording or evidence obtained or derived in the course | 7 |
| of an
investigation of any offense defined in Article 29D of | 8 |
| this Code shall, upon
motion of the State's Attorney or | 9 |
| Attorney General prosecuting any violation of
Article 29D, be | 10 |
| reviewed in camera with notice to all parties present by the
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| court presiding over the criminal
case, and, if ruled by the | 12 |
| court to be relevant and otherwise admissible,
it shall be | 13 |
| admissible at the trial of the criminal
case.
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| This subsection (g-5) is inoperative on and after January | 15 |
| 1, 2005.
No conversations recorded or monitored pursuant to | 16 |
| this subsection (g-5)
shall be inadmissible in a court of law | 17 |
| by virtue of the repeal of this
subsection (g-5) on January 1, | 18 |
| 2005;
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| (g-6) With approval of the State's Attorney of the county | 20 |
| in which it is to occur, recording or listening with the aid of | 21 |
| any device to any conversation where a law enforcement officer, | 22 |
| or any person acting at the direction of law enforcement, is a | 23 |
| party to the conversation and has consented to it being | 24 |
| intercepted or recorded in the course of an investigation of | 25 |
| child pornography. In all such cases, an application for an | 26 |
| order approving the previous or continuing use of an |
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| eavesdropping device must be made within 48 hours of the | 2 |
| commencement of such use. In the absence of such an order, or | 3 |
| upon its denial, any continuing use shall immediately | 4 |
| terminate. The Director of State Police shall issue rules as | 5 |
| are necessary concerning the use of devices, retention of | 6 |
| recordings, and reports regarding their use.
Any recording or | 7 |
| evidence obtained or derived in the course of an investigation | 8 |
| of child pornography shall, upon motion of the State's Attorney | 9 |
| or Attorney General prosecuting any case involving child | 10 |
| pornography, be reviewed in camera with notice to all parties | 11 |
| present by the court presiding over the criminal case, and, if | 12 |
| ruled by the court to be relevant and otherwise admissible, it | 13 |
| shall be admissible at the trial of the criminal case. Absent | 14 |
| such a ruling, any such recording or evidence shall not be | 15 |
| admissible at the trial of the criminal case; | 16 |
| (h) Recordings made simultaneously with a video recording | 17 |
| of an oral
conversation between a peace officer, who has | 18 |
| identified his or her office, and
a person stopped for an | 19 |
| investigation of an offense under the Illinois Vehicle
Code;
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| (i) Recording of a conversation made by or at the request | 21 |
| of a person, not a
law enforcement officer or agent of a law | 22 |
| enforcement officer, who is a party
to the conversation, under | 23 |
| reasonable suspicion that another party to the
conversation is | 24 |
| committing, is about to commit, or has committed a criminal
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| offense against the person or a member of his or her immediate | 26 |
| household, and
there is reason to believe that evidence of the |
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| criminal offense may be
obtained by the recording;
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| (i-5) Recording of a conversation made by or at the request | 3 |
| of a person, not a law enforcement officer or agent of a law | 4 |
| enforcement officer, who is a party to the conversation, under | 5 |
| reasonable suspicion that another party to the conversation is | 6 |
| committing, is about to commit, or has committed a criminal | 7 |
| offense which is a violation of any provision of Article 33, | 8 |
| Article 33C, or Article 33E of this Code and there is reason to | 9 |
| believe that evidence of the criminal offense may be obtained | 10 |
| by the recording; | 11 |
| (j) The use of a telephone monitoring device by either (1) | 12 |
| a
corporation or other business entity engaged in marketing or | 13 |
| opinion research
or (2) a corporation or other business entity | 14 |
| engaged in telephone
solicitation, as
defined in this | 15 |
| subsection, to record or listen to oral telephone solicitation
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| conversations or marketing or opinion research conversations | 17 |
| by an employee of
the corporation or other business entity | 18 |
| when:
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| (i) the monitoring is used for the purpose of service | 20 |
| quality control of
marketing or opinion research or | 21 |
| telephone solicitation, the education or
training of | 22 |
| employees or contractors
engaged in marketing or opinion | 23 |
| research or telephone solicitation, or internal
research | 24 |
| related to marketing or
opinion research or telephone
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| solicitation; and
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| (ii) the monitoring is used with the consent of at |
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| least one person who
is an active party to the marketing or | 2 |
| opinion research conversation or
telephone solicitation | 3 |
| conversation being
monitored.
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| No communication or conversation or any part, portion, or | 5 |
| aspect of the
communication or conversation made, acquired, or | 6 |
| obtained, directly or
indirectly,
under this exemption (j), may | 7 |
| be, directly or indirectly, furnished to any law
enforcement | 8 |
| officer, agency, or official for any purpose or used in any | 9 |
| inquiry
or investigation, or used, directly or indirectly, in | 10 |
| any administrative,
judicial, or other proceeding, or divulged | 11 |
| to any third party.
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| When recording or listening authorized by this subsection | 13 |
| (j) on telephone
lines used for marketing or opinion research | 14 |
| or telephone solicitation purposes
results in recording or
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| listening to a conversation that does not relate to marketing | 16 |
| or opinion
research or telephone solicitation; the
person | 17 |
| recording or listening shall, immediately upon determining | 18 |
| that the
conversation does not relate to marketing or opinion | 19 |
| research or telephone
solicitation, terminate the recording
or | 20 |
| listening and destroy any such recording as soon as is | 21 |
| practicable.
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| Business entities that use a telephone monitoring or | 23 |
| telephone recording
system pursuant to this exemption (j) shall | 24 |
| provide current and prospective
employees with notice that the | 25 |
| monitoring or recordings may occur during the
course of their | 26 |
| employment. The notice shall include prominent signage
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| notification within the workplace.
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| Business entities that use a telephone monitoring or | 3 |
| telephone recording
system pursuant to this exemption (j) shall | 4 |
| provide their employees or agents
with access to personal-only | 5 |
| telephone lines which may be pay telephones, that
are not | 6 |
| subject to telephone monitoring or telephone recording.
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| For the purposes of this subsection (j), "telephone | 8 |
| solicitation" means a
communication through the use of a | 9 |
| telephone by live operators:
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| (i) soliciting the sale of goods or services;
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| (ii) receiving orders for the sale of goods or | 12 |
| services;
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| (iii) assisting in the use of goods or services; or
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| (iv) engaging in the solicitation, administration, or | 15 |
| collection of bank
or
retail credit accounts.
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| For the purposes of this subsection (j), "marketing or | 17 |
| opinion research"
means
a marketing or opinion research | 18 |
| interview conducted by a live telephone
interviewer engaged by | 19 |
| a corporation or other business entity whose principal
business | 20 |
| is the design, conduct, and analysis of polls and surveys | 21 |
| measuring
the
opinions, attitudes, and responses of | 22 |
| respondents toward products and services,
or social or | 23 |
| political issues, or both;
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| (k) Electronic recordings, including but not limited to, a | 25 |
| motion picture,
videotape, digital, or other visual or audio | 26 |
| recording, made of a custodial
interrogation of an individual |
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| at a police station or other place of detention
by a law | 2 |
| enforcement officer under Section 5-401.5 of the Juvenile Court | 3 |
| Act of
1987 or Section 103-2.1 of the Code of Criminal | 4 |
| Procedure of 1963; | 5 |
| (l) Recording the interview or statement of any person when | 6 |
| the person
knows that the interview is being conducted by a law | 7 |
| enforcement officer or
prosecutor and the interview takes place | 8 |
| at a police station that is currently
participating in the | 9 |
| Custodial Interview Pilot Program established under the
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| Illinois Criminal Justice Information Act;
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| (m) An electronic recording, including but not limited to, | 12 |
| a motion picture,
videotape, digital, or other visual or audio | 13 |
| recording, made of the interior of a school bus while the | 14 |
| school bus is being used in the transportation of students to | 15 |
| and from school and school-sponsored activities, when the | 16 |
| school board has adopted a policy authorizing such recording, | 17 |
| notice of such recording policy is included in student | 18 |
| handbooks and other documents including the policies of the | 19 |
| school, notice of the policy regarding recording is provided to | 20 |
| parents of students, and notice of such recording is clearly | 21 |
| posted on the door of and inside the school bus.
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| Recordings made pursuant to this subsection (m) shall be | 23 |
| confidential records and may only be used by school officials | 24 |
| (or their designees) and law enforcement personnel for | 25 |
| investigations, school disciplinary actions and hearings, | 26 |
| proceedings under the Juvenile Court Act of 1987, and criminal |
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| prosecutions, related to incidents occurring in or around the | 2 |
| school bus; and | 3 |
| (n)
Recording or listening to an audio transmission from a | 4 |
| microphone placed by a person under the authority of a law | 5 |
| enforcement agency inside a bait car surveillance vehicle while | 6 |
| simultaneously capturing a photographic or video image.
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| (Source: P.A. 94-556, eff. 9-11-05; 95-258, eff. 1-1-08; | 8 |
| 95-352, eff. 8-23-07; 95-463, eff. 6-1-08; 95-876, eff. | 9 |
| 8-21-08.)
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| Section 99. Effective date. This Act takes effect upon | 11 |
| becoming law.
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