State of Illinois
92nd General Assembly
Legislation

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[ Introduced ][ Enrolled ][ House Amendment 001 ]
[ Senate Amendment 001 ]


92_SB1646eng

 
SB1646 Engrossed                               LRB9211249RCcd

 1        AN ACT in relation to 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    Sections 16-18, 16-19, 16-20, and 16-21 as follows:

 6        (720 ILCS 5/16-18 new)
 7        Sec. 16-18. Unlawful communication  and  access  devices;
 8    definitions.  As  used  in  Sections 16-19, 16-20, and 16-21,
 9    unless the context otherwise indicates:
10        "Communication device"  means  any  type  of  instrument,
11    device,   machine,   or   equipment   which   is  capable  of
12    transmitting,  acquiring,  decrypting,   or   receiving   any
13    telephonic,  electronic, data, Internet access, audio, video,
14    microwave, or radio transmissions,  signals,  communications,
15    or    services,    including    the   receipt,   acquisition,
16    transmission,  or  decryption  of  all  such  communications,
17    transmissions, signals, or services provided  by  or  through
18    any  cable  television,  fiber  optic,  telephone, satellite,
19    microwave,  radio,  Internet-based,  data  transmission,   or
20    wireless  distribution  network,  system  or facility; or any
21    part, accessory, or component thereof, including any computer
22    circuit, security  module,  smart  card,  software,  computer
23    chip,  electronic  mechanism or other component, accessory or
24    part  of  any  communication  device  which  is  capable   of
25    facilitating  the  transmission,  decryption,  acquisition or
26    reception of all such communications, transmissions, signals,
27    or services.
28        "Communication  service"  means  any   service   lawfully
29    provided  for  a  charge  or  compensation  to facilitate the
30    lawful origination, transmission, emission, or  reception  of
31    signs,   signals,  data,  writings,  images,  and  sounds  or
 
SB1646 Engrossed            -2-                LRB9211249RCcd
 1    intelligence of any nature by telephone,  including  cellular
 2    telephones  or  a  wire,  wireless,  radio,  electromagnetic,
 3    photo-electronic   or  photo-optical  system;  and  also  any
 4    service lawfully provided  by  any  radio,  telephone,  cable
 5    television, fiber optic, satellite, microwave, Internet-based
 6    or   wireless   distribution  network,  system,  facility  or
 7    technology, including,  but  not  limited  to,  any  and  all
 8    electronic,  data, video, audio, Internet access, telephonic,
 9    microwave and radio  communications,  transmissions,  signals
10    and  services,  and  any  such communications, transmissions,
11    signals and services lawfully provided directly or indirectly
12    by or through any of those networks, systems,  facilities  or
13    technologies.
14        "Communication service provider" means: (1) any person or
15    entity  providing any communication service, whether directly
16    or indirectly, as a reseller, including, but not limited  to,
17    a  cellular,  paging or other wireless communications company
18    or other person or entity which,  for  a  fee,  supplies  the
19    facility,  cell  site,  mobile  telephone switching office or
20    other equipment or communication service; (2) any  person  or
21    entity owning or operating any cable television, fiber optic,
22    satellite,   telephone,   wireless,  microwave,  radio,  data
23    transmission or Internet-based distribution  network,  system
24    or  facility;  and  (3)  any  person  or entity providing any
25    communication service directly or indirectly  by  or  through
26    any such distribution system, network or facility.
27        "Unlawful  communication  device"  means  any  electronic
28    serial   number,   mobile   identification  number,  personal
29    identification number or any  communication  device  that  is
30    capable  of  acquiring  or  facilitating the acquisition of a
31    communication service without the express consent or  express
32    authorization  of the communication service provider, or that
33    has been altered, modified, programmed or reprogrammed, alone
34    or in conjunction with another communication device or  other
 
SB1646 Engrossed            -3-                LRB9211249RCcd
 1    equipment,  to  so  acquire  or  facilitate  the unauthorized
 2    acquisition   of   a   communication    service.    "Unlawful
 3    communication device" also means:
 4             (1)  any phone altered to obtain service without the
 5        express   consent   or   express   authorization  of  the
 6        communication   service    provider,    tumbler    phone,
 7        counterfeit    or   clone   phone,   tumbler   microchip,
 8        counterfeit  or  clone  microchip  or  other   instrument
 9        capable  of  disguising  its  identity  or location or of
10        gaining unauthorized access to  a  communications  system
11        operated by a communication service provider; and
12             (2)  any  communication  device which is capable of,
13        or has been altered, designed,  modified,  programmed  or
14        reprogrammed,   alone  or  in  conjunction  with  another
15        communication device or devices, so as to be capable  of,
16        facilitating   the   disruption,   acquisition,  receipt,
17        transmission or decryption  of  a  communication  service
18        without  the  express consent or express authorization of
19        the communication service provider,  including,  but  not
20        limited  to,  any  device,  technology, product, service,
21        equipment,  computer  software  or  component   or   part
22        thereof,    primarily    distributed,   sold,   designed,
23        assembled,    manufactured,     modified,     programmed,
24        reprogrammed  or  used  for  the purpose of providing the
25        unauthorized receipt of, transmission of, disruption  of,
26        decryption   of,   access   to   or  acquisition  of  any
27        communication  service  provided  by  any   communication
28        service provider.
29        "Manufacture  or  assembly  of  an unlawful communication
30    device" means  to  make,  produce  or  assemble  an  unlawful
31    communication   device   or  to  modify,  alter,  program  or
32    reprogram a communication device to be capable of  acquiring,
33    disrupting,    receiving,    transmitting,   decrypting,   or
34    facilitating   the    acquisition,    disruption,    receipt,
 
SB1646 Engrossed            -4-                LRB9211249RCcd
 1    transmission   or  decryption  of,  a  communication  service
 2    without the express consent or express authorization  of  the
 3    communication service provider, or to knowingly assist others
 4    in those activities.
 5        "Unlawful  access  device"  means any type of instrument,
 6    device, machine, equipment, technology, or software which  is
 7    primarily possessed, used, designed, assembled, manufactured,
 8    sold,  distributed or offered, promoted or advertised for the
 9    purpose of defeating or circumventing any technology,  device
10    or  software,  or  any component or part thereof, used by the
11    provider, owner or licensee of any communication  service  or
12    of  any  data,  audio  or  video programs or transmissions to
13    protect any such  communication,  audio  or  video  services,
14    programs   or   transmissions   from   unauthorized   access,
15    acquisition,  receipt, decryption, disclosure, communication,
16    transmission or re-transmission.
17        "Manufacture or assembly of an  unlawful  access  device"
18    means  to make, produce or assemble an unlawful access device
19    or to modify, alter, program or  re-program  any  instrument,
20    device,  machine, equipment or software so that it is capable
21    of defeating  or  circumventing  any  technology,  device  or
22    software  used  by  the  provider,  owner  or  licensee  of a
23    communication service or of any data, audio or video programs
24    or transmissions to protect  any  such  communication,  data,
25    audio  or  video  services,  programs  or  transmissions from
26    unauthorized  access,   acquisition,   disclosure,   receipt,
27    decryption, communication, transmission or re-transmission.

28        (720 ILCS 5/16-19 new)
29        Sec.  16-19. Prohibited acts. A person commits an offense
30    if he or she knowingly:
31        (1)  obtains or uses a communication service without  the
32    authorization  of, or compensation paid to, the communication
33    service provider, or assists or instructs any other person in
 
SB1646 Engrossed            -5-                LRB9211249RCcd
 1    doing so with intent to  defraud  the  communication  service
 2    provider;
 3        (2)  possesses,     uses,     manufactures,    assembles,
 4    distributes, leases, transfers, or sells, or offers, promotes
 5    or advertises  for  sale,  lease,  use,  or  distribution  an
 6    unlawful communication device:
 7             (A)  for   the   commission   of   a   theft   of  a
 8        communication service or to receive,  disrupt,  transmit,
 9        decrypt,   or   acquire,   or   facilitate  the  receipt,
10        disruption, transmission, decryption or  acquisition,  of
11        any  communication service without the express consent or
12        express  authorization  of  the   communication   service
13        provider; or
14             (B)  to conceal or to assist another to conceal from
15        any  communication  service  provider  or from any lawful
16        authority the existence or place of origin or destination
17        of any communication;
18        (3)  modifies,   alters,   programs   or   reprograms   a
19    communication  device   for   the   purposes   described   in
20    subdivision (2)(A) or (2)(B);
21        (4)  possesses,  uses,  manufactures,  assembles, leases,
22    distributes, sells, or  transfers,  or  offers,  promotes  or
23    advertises for sale, use or distribution, any unlawful access
24    device; or
25        (5)  possesses,  uses,  prepares,  distributes,  gives or
26    otherwise  transfers  to  another  or  offers,  promotes,  or
27    advertises for sale, use or distribution any:
28             (A)  plans or instructions for making or  assembling
29        an   unlawful   communication  or  access  device,  under
30        circumstances evidencing an intent to use or  employ  the
31        unlawful  communication or access device, or to allow the
32        same to be used or employed, for a purpose prohibited  by
33        this Section, or knowing or having reason to believe that
34        the  plans  or  instructions  are intended to be used for
 
SB1646 Engrossed            -6-                LRB9211249RCcd
 1        manufacturing or assembling the unlawful communication or
 2        access device for a purpose prohibited by  this  Section;
 3        or
 4             (B)  material,  including  hardware,  cables, tools,
 5        data,  computer  software   or   other   information   or
 6        equipment,  knowing  that the purchaser or a third person
 7        intends  to  use  the  material  in  the  manufacture  or
 8        assembly of an unlawful communication  or  access  device
 9        for a purpose prohibited by this Section.

10        (720 ILCS 5/16-20 new)
11        Sec. 16-20.  Criminal penalties.
12        (a)  Except  for  violations of Section 16-19 as provided
13    for in subsection (b) or (c) of this Section,  a  person  who
14    violates Section 16-19 is guilty of a Class A misdemeanor.
15        (b)  An  offense  under Section 16-19 is a Class 4 felony
16    if:
17             (1)  the defendant  has  been  convicted  previously
18        under  Section 16-19 or convicted of any similar crime in
19        this or any federal or other state jurisdiction; or
20             (2)  the violation  of  Section  16-19  involves  at
21        least 10, but not more than 50, unlawful communication or
22        access devices.
23        (c)  An  offense  under Section 16-19 is a Class 3 felony
24    if:
25             (1)  the defendant has been convicted previously  on
26        2  or  more occasions for offenses under Section 16-19 or
27        for any similar crime in this or  any  federal  or  other
28        state jurisdiction; or
29             (2)  the  violation  of  Section 16-19 involves more
30        than 50 unlawful communication or access devices.
31        (d)  For purposes of grading  an  offense  based  upon  a
32    prior conviction under Section 16-19 or for any similar crime
33    under subdivisions (b)(1) and (c)(1) of this Section, a prior
 
SB1646 Engrossed            -7-                LRB9211249RCcd
 1    conviction   shall   consist  of  convictions  upon  separate
 2    indictments or criminal complaints for offenses under Section
 3    16-19 or any similar crime in this or any  federal  or  other
 4    state jurisdiction.
 5        (e)  As provided for in subdivisions (b)(1) and (c)(1) of
 6    this Section, in grading an offense under Section 16-19 based
 7    upon  a  prior conviction, the term "any similar crime" shall
 8    include, but not be limited to, offenses involving  theft  of
 9    service   or   fraud,   including  violations  of  the  Cable
10    Communications Policy Act of  1984  (Public  Law  98-549,  98
11    Stat. 2779).
12        (f)  Separate  offenses.  For  purposes  of  all criminal
13    penalties or fines  established  for  violations  of  Section
14    16-19,  the  prohibited activity established in Section 16-19
15    as it applies to each unlawful communication or access device
16    shall be deemed a separate offense.
17        (g)    Fines.  For  purposes  of  imposing   fines   upon
18    conviction of a defendant for an offense under Section 16-19,
19    all  fines  shall  be imposed in accordance with Article 9 of
20    Chapter V of the Unified Code of Corrections.
21        (h)  Restitution.  The court shall, in  addition  to  any
22    other sentence authorized by law, sentence a person convicted
23    of  violating Section 16-19 to make restitution in the manner
24    provided in Article 5 of Chapter V of  the  Unified  Code  of
25    Corrections.
26        (i)  Forfeiture   of  unlawful  communication  or  access
27    devices. Upon conviction of a defendant under Section  16-19,
28    the  court  may, in addition to any other sentence authorized
29    by law,  direct  that  the  defendant  forfeit  any  unlawful
30    communication or access devices in the defendant's possession
31    or control which were involved in the violation for which the
32    defendant was convicted.
33        (j)  Venue.  An offense under Section 16-19 may be deemed
34    to  have  been  committed  at  either  the  place  where  the
 
SB1646 Engrossed            -8-                LRB9211249RCcd
 1    defendant manufactured or assembled an unlawful communication
 2    or access device, or assisted others  in  doing  so,  or  the
 3    place  where  the unlawful communication or access device was
 4    sold or delivered to a purchaser or recipient. It  is  not  a
 5    defense to a violation of Section 16-19 that some of the acts
 6    constituting  the  offense  occurred  outside of the State of
 7    Illinois.

 8        (720 ILCS 5/16-21 new)
 9        Sec. 16-21. Civil actions.
10        (a)  Any person aggrieved by a violation of Section 16-19
11    may  bring  a  civil  action  in  any  court   of   competent
12    jurisdiction.
13        (b)  The court may:
14             (1)  grant  preliminary  and  final  injunctions  to
15        prevent or restrain violations of Section 16-19 without a
16        showing  by the plaintiff of special damages, irreparable
17        harm or inadequacy of other legal remedies;
18             (2)  at any time while an action is  pending,  order
19        the  impounding, on such terms as it deems reasonable, of
20        any unlawful communication or access device  that  is  in
21        the custody or control of the violator and that the court
22        has  reasonable  cause  to  believe  was  involved in the
23        alleged violation of Section 16-19;
24             (3)  award damages as described in subsection (c);
25             (4)  in its discretion, award reasonable  attorney's
26        fees  and costs, including, but not limited to, costs for
27        investigation, testing and expert  witness  fees,  to  an
28        aggrieved party who prevails; and
29             (5)  as part of a final judgment or decree finding a
30        violation   of   Section   16-19,   order   the  remedial
31        modification or destruction of any unlawful communication
32        or access device involved in the violation that is in the
33        custody or control of the violator or has been  impounded
 
SB1646 Engrossed            -9-                LRB9211249RCcd
 1        under subdivision (2) of this subsection (b).
 2        (c)  Types  of  damages recoverable. Damages awarded by a
 3    court under this Section shall be computed as either  of  the
 4    following:
 5             (1)  Upon his or her election of such damages at any
 6        time  before  final  judgment is entered, the complaining
 7        party may recover the actual damages suffered by  him  or
 8        her as a result of the violation of Section 16-19 and any
 9        profits  of  the  violator  that  are attributable to the
10        violation and are not taken into account in computing the
11        actual damages. In determining  the  violator's  profits,
12        the complaining party shall be required to prove only the
13        violator's  gross  revenue,  and  the  violator  shall be
14        required to prove his or her deductible expenses and  the
15        elements of profit attributable to factors other than the
16        violation; or
17             (2)  Upon  election  by the complaining party at any
18        time before final judgment is  entered,  that  party  may
19        recover  in  lieu of actual damages an award of statutory
20        damages of not less than $250 and not more  than  $10,000
21        for each unlawful communication or access device involved
22        in the action, with the amount of statutory damages to be
23        determined  by the court, as the court considers just. In
24        any case, if the court finds that any of  the  violations
25        of   Section  16-19  were  committed  willfully  and  for
26        purposes of commercial  advantage  or  private  financial
27        gain,  the court in its discretion may increase the award
28        of statutory damages  by  an  amount  of  not  more  than
29        $50,000  for each unlawful communication or access device
30        involved in the action.
31        (d)  For purposes of all civil remedies  established  for
32    violations   of   Section   16-19,  the  prohibited  activity
33    established  in  this  Section  applies  to   each   unlawful
34    communication or access device and shall be deemed a separate
 
SB1646 Engrossed            -10-               LRB9211249RCcd
 1    violation.

 2        (720 ILCS 5/16-10 rep.)
 3        (720 ILCS 5/16-11 rep.)
 4        (720 ILCS 5/16-12 rep.)
 5        (720 ILCS 5/16-13 rep.)

 6        Section  10.  The  Criminal  Code  of  1961 is amended by
 7    repealing Sections 16-10, 16-11, 16-12, and 16-13.

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