Public Act 095-0942
 
HB3477 Enrolled LRB095 09074 RLC 29266 b

    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 1961 is amended by adding
Section 16D-5.5 as follows:
 
    (720 ILCS 5/16D-5.5 new)
    Sec. 16D-5.5. Unlawful use of encryption.
    (a) For the purpose of this Section:
        "Access" means to intercept, instruct, communicate
    with, store data in, retrieve from, or otherwise make use
    of any resources of a computer, network, or data.
        "Computer" means an electronic device which performs
    logical, arithmetic, and memory functions by manipulations
    of electronic or magnetic impulses and includes all
    equipment related to the computer in a system or network.
        "Computer contaminant" means any data, information,
    image, program, signal, or sound that is designated or has
    the capability to: (1) contaminate, corrupt, consume,
    damage, destroy, disrupt, modify, record, or transmit; or
    (2) cause to be contaminated, corrupted, consumed,
    damaged, destroyed, disrupted, modified, recorded, or
    transmitted, any other data, information, image, program,
    signal, or sound contained in a computer, system, or
    network without the knowledge or consent of the person who
    owns the other data, information, image, program, signal,
    or sound or the computer, system, or network.
        "Computer contaminant" includes, without limitation:
    (1) a virus, worm, or Trojan horse; (2) spyware that tracks
    computer activity and is capable of recording and
    transmitting such information to third parties; or (3) any
    other similar data, information, image, program, signal,
    or sound that is designed or has the capability to prevent,
    impede, delay, or disrupt the normal operation or use of
    any component, device, equipment, system, or network.
        "Data" means a representation in any form of
    information, knowledge, facts, concepts, or instructions
    which is being prepared or has been formally prepared and
    is intended to be processed, is being processed or has been
    processed in a system or network.
        "Encryption" means the use of any protective or
    disruptive measure, including, without limitation,
    cryptography, enciphering, encoding, or a computer
    contaminant, to: (1) prevent, impede, delay, or disrupt
    access to any data, information, image, program, signal, or
    sound; (2) cause or make any data, information, image,
    program, signal, or sound unintelligible or unusable; or
    (3) prevent, impede, delay, or disrupt the normal operation
    or use of any component, device, equipment, system, or
    network.
        "Network" means a set of related, remotely connected
    devices and facilities, including more than one system,
    with the capability to transmit data among any of the
    devices and facilities. The term includes, without
    limitation, a local, regional, or global computer network.
        "Program" means an ordered set of data representing
    coded instructions or statements which can be executed by a
    computer and cause the computer to perform one or more
    tasks.
        "System" means a set of related equipment, whether or
    not connected, which is used with or for a computer.
    (b) A person shall not knowingly use or attempt to use
encryption, directly or indirectly, to:
        (1) commit, facilitate, further, or promote any
    criminal offense;
        (2) aid, assist, or encourage another person to commit
    any criminal offense;
        (3) conceal evidence of the commission of any criminal
    offense; or
        (4) conceal or protect the identity of a person who has
    committed any criminal offense.
    (c) Telecommunications carriers and information service
providers are not liable under this Section, except for willful
and wanton misconduct, for providing encryption services used
by others in violation of this Section.
    (d) Sentence. A person who violates this Section is guilty
of a Class A misdemeanor, unless the encryption was used or
attempted to be used to commit an offense for which a greater
penalty is provided by law. If the encryption was used or
attempted to be used to commit an offense for which a greater
penalty is provided by law, the person shall be punished as
prescribed by law for that offense.
    (e) A person who violates this Section commits a criminal
offense that is separate and distinct from any other criminal
offense and may be prosecuted and convicted under this Section
whether or not the person or any other person is or has been
prosecuted or convicted for any other criminal offense arising
out of the same facts as the violation of this Section.
 
    Section 10. The Unified Code of Corrections is amended by
changing Section 5-5-3.2 as follows:
 
    (730 ILCS 5/5-5-3.2)  (from Ch. 38, par. 1005-5-3.2)
    Sec. 5-5-3.2. Factors in Aggravation.
    (a) The following factors shall be accorded weight in favor
of imposing a term of imprisonment or may be considered by the
court as reasons to impose a more severe sentence under Section
5-8-1:
        (1) the defendant's conduct caused or threatened
    serious harm;
        (2) the defendant received compensation for committing
    the offense;
        (3) the defendant has a history of prior delinquency or
    criminal activity;
        (4) the defendant, by the duties of his office or by
    his position, was obliged to prevent the particular offense
    committed or to bring the offenders committing it to
    justice;
        (5) the defendant held public office at the time of the
    offense, and the offense related to the conduct of that
    office;
        (6) the defendant utilized his professional reputation
    or position in the community to commit the offense, or to
    afford him an easier means of committing it;
        (7) the sentence is necessary to deter others from
    committing the same crime;
        (8) the defendant committed the offense against a
    person 60 years of age or older or such person's property;
        (9) the defendant committed the offense against a
    person who is physically handicapped or such person's
    property;
        (10) by reason of another individual's actual or
    perceived race, color, creed, religion, ancestry, gender,
    sexual orientation, physical or mental disability, or
    national origin, the defendant committed the offense
    against (i) the person or property of that individual; (ii)
    the person or property of a person who has an association
    with, is married to, or has a friendship with the other
    individual; or (iii) the person or property of a relative
    (by blood or marriage) of a person described in clause (i)
    or (ii). For the purposes of this Section, "sexual
    orientation" means heterosexuality, homosexuality, or
    bisexuality;
        (11) the offense took place in a place of worship or on
    the grounds of a place of worship, immediately prior to,
    during or immediately following worship services. For
    purposes of this subparagraph, "place of worship" shall
    mean any church, synagogue or other building, structure or
    place used primarily for religious worship;
        (12) the defendant was convicted of a felony committed
    while he was released on bail or his own recognizance
    pending trial for a prior felony and was convicted of such
    prior felony, or the defendant was convicted of a felony
    committed while he was serving a period of probation,
    conditional discharge, or mandatory supervised release
    under subsection (d) of Section 5-8-1 for a prior felony;
        (13) the defendant committed or attempted to commit a
    felony while he was wearing a bulletproof vest. For the
    purposes of this paragraph (13), a bulletproof vest is any
    device which is designed for the purpose of protecting the
    wearer from bullets, shot or other lethal projectiles;
        (14) the defendant held a position of trust or
    supervision such as, but not limited to, family member as
    defined in Section 12-12 of the Criminal Code of 1961,
    teacher, scout leader, baby sitter, or day care worker, in
    relation to a victim under 18 years of age, and the
    defendant committed an offense in violation of Section
    11-6, 11-11, 11-15.1, 11-19.1, 11-19.2, 11-20.1, 12-13,
    12-14, 12-14.1, 12-15 or 12-16 of the Criminal Code of 1961
    against that victim;
        (15) the defendant committed an offense related to the
    activities of an organized gang. For the purposes of this
    factor, "organized gang" has the meaning ascribed to it in
    Section 10 of the Streetgang Terrorism Omnibus Prevention
    Act;
        (16) the defendant committed an offense in violation of
    one of the following Sections while in a school, regardless
    of the time of day or time of year; on any conveyance
    owned, leased, or contracted by a school to transport
    students to or from school or a school related activity; on
    the real property of a school; or on a public way within
    1,000 feet of the real property comprising any school:
    Section 10-1, 10-2, 10-5, 11-15.1, 11-17.1, 11-18.1,
    11-19.1, 11-19.2, 12-2, 12-4, 12-4.1, 12-4.2, 12-4.3,
    12-6, 12-6.1, 12-13, 12-14, 12-14.1, 12-15, 12-16, 18-2, or
    33A-2 of the Criminal Code of 1961;
        (16.5) the defendant committed an offense in violation
    of one of the following Sections while in a day care
    center, regardless of the time of day or time of year; on
    the real property of a day care center, regardless of the
    time of day or time of year; or on a public way within
    1,000 feet of the real property comprising any day care
    center, regardless of the time of day or time of year:
    Section 10-1, 10-2, 10-5, 11-15.1, 11-17.1, 11-18.1,
    11-19.1, 11-19.2, 12-2, 12-4, 12-4.1, 12-4.2, 12-4.3,
    12-6, 12-6.1, 12-13, 12-14, 12-14.1, 12-15, 12-16, 18-2, or
    33A-2 of the Criminal Code of 1961;
        (17) the defendant committed the offense by reason of
    any person's activity as a community policing volunteer or
    to prevent any person from engaging in activity as a
    community policing volunteer. For the purpose of this
    Section, "community policing volunteer" has the meaning
    ascribed to it in Section 2-3.5 of the Criminal Code of
    1961;
        (18) the defendant committed the offense in a nursing
    home or on the real property comprising a nursing home. For
    the purposes of this paragraph (18), "nursing home" means a
    skilled nursing or intermediate long term care facility
    that is subject to license by the Illinois Department of
    Public Health under the Nursing Home Care Act;
        (19) the defendant was a federally licensed firearm
    dealer and was previously convicted of a violation of
    subsection (a) of Section 3 of the Firearm Owners
    Identification Card Act and has now committed either a
    felony violation of the Firearm Owners Identification Card
    Act or an act of armed violence while armed with a firearm;
        (20) the defendant (i) committed the offense of
    reckless homicide under Section 9-3 of the Criminal Code of
    1961 or the offense of driving under the influence of
    alcohol, other drug or drugs, intoxicating compound or
    compounds or any combination thereof under Section 11-501
    of the Illinois Vehicle Code or a similar provision of a
    local ordinance and (ii) was operating a motor vehicle in
    excess of 20 miles per hour over the posted speed limit as
    provided in Article VI of Chapter 11 of the Illinois
    Vehicle Code; or
        (21) the defendant (i) committed the offense of
    reckless driving or aggravated reckless driving under
    Section 11-503 of the Illinois Vehicle Code and (ii) was
    operating a motor vehicle in excess of 20 miles per hour
    over the posted speed limit as provided in Article VI of
    Chapter 11 of the Illinois Vehicle Code; or .
        (22) the defendant committed any offense under Section
    11-20.1 of the Criminal Code of 1961 and possessed 100 or
    more images.
    For the purposes of this Section:
    "School" is defined as a public or private elementary or
secondary school, community college, college, or university.
    "Day care center" means a public or private State certified
and licensed day care center as defined in Section 2.09 of the
Child Care Act of 1969 that displays a sign in plain view
stating that the property is a day care center.
    (b) The following factors may be considered by the court as
reasons to impose an extended term sentence under Section 5-8-2
upon any offender:
        (1) When a defendant is convicted of any felony, after
    having been previously convicted in Illinois or any other
    jurisdiction of the same or similar class felony or greater
    class felony, when such conviction has occurred within 10
    years after the previous conviction, excluding time spent
    in custody, and such charges are separately brought and
    tried and arise out of different series of acts; or
        (2) When a defendant is convicted of any felony and the
    court finds that the offense was accompanied by
    exceptionally brutal or heinous behavior indicative of
    wanton cruelty; or
        (3) When a defendant is convicted of voluntary
    manslaughter, second degree murder, involuntary
    manslaughter or reckless homicide in which the defendant
    has been convicted of causing the death of more than one
    individual; or
        (4) When a defendant is convicted of any felony
    committed against:
            (i) a person under 12 years of age at the time of
        the offense or such person's property;
            (ii) a person 60 years of age or older at the time
        of the offense or such person's property; or
            (iii) a person physically handicapped at the time
        of the offense or such person's property; or
        (5) In the case of a defendant convicted of aggravated
    criminal sexual assault or criminal sexual assault, when
    the court finds that aggravated criminal sexual assault or
    criminal sexual assault was also committed on the same
    victim by one or more other individuals, and the defendant
    voluntarily participated in the crime with the knowledge of
    the participation of the others in the crime, and the
    commission of the crime was part of a single course of
    conduct during which there was no substantial change in the
    nature of the criminal objective; or
        (6) When a defendant is convicted of any felony and the
    offense involved any of the following types of specific
    misconduct committed as part of a ceremony, rite,
    initiation, observance, performance, practice or activity
    of any actual or ostensible religious, fraternal, or social
    group:
            (i) the brutalizing or torturing of humans or
        animals;
            (ii) the theft of human corpses;
            (iii) the kidnapping of humans;
            (iv) the desecration of any cemetery, religious,
        fraternal, business, governmental, educational, or
        other building or property; or
            (v) ritualized abuse of a child; or
        (7) When a defendant is convicted of first degree
    murder, after having been previously convicted in Illinois
    of any offense listed under paragraph (c)(2) of Section
    5-5-3, when such conviction has occurred within 10 years
    after the previous conviction, excluding time spent in
    custody, and such charges are separately brought and tried
    and arise out of different series of acts; or
        (8) When a defendant is convicted of a felony other
    than conspiracy and the court finds that the felony was
    committed under an agreement with 2 or more other persons
    to commit that offense and the defendant, with respect to
    the other individuals, occupied a position of organizer,
    supervisor, financier, or any other position of management
    or leadership, and the court further finds that the felony
    committed was related to or in furtherance of the criminal
    activities of an organized gang or was motivated by the
    defendant's leadership in an organized gang; or
        (9) When a defendant is convicted of a felony violation
    of Section 24-1 of the Criminal Code of 1961 and the court
    finds that the defendant is a member of an organized gang;
    or
        (10) When a defendant committed the offense using a
    firearm with a laser sight attached to it. For purposes of
    this paragraph (10), "laser sight" has the meaning ascribed
    to it in Section 24.6-5 of the Criminal Code of 1961; or
        (11) When a defendant who was at least 17 years of age
    at the time of the commission of the offense is convicted
    of a felony and has been previously adjudicated a
    delinquent minor under the Juvenile Court Act of 1987 for
    an act that if committed by an adult would be a Class X or
    Class 1 felony when the conviction has occurred within 10
    years after the previous adjudication, excluding time
    spent in custody; or
        (12) When a defendant commits an offense involving the
    illegal manufacture of a controlled substance under
    Section 401 of the Illinois Controlled Substances Act, the
    illegal manufacture of methamphetamine under Section 25 of
    the Methamphetamine Control and Community Protection Act,
    or the illegal possession of explosives and an emergency
    response officer in the performance of his or her duties is
    killed or injured at the scene of the offense while
    responding to the emergency caused by the commission of the
    offense. In this paragraph (12), "emergency" means a
    situation in which a person's life, health, or safety is in
    jeopardy; and "emergency response officer" means a peace
    officer, community policing volunteer, fireman, emergency
    medical technician-ambulance, emergency medical
    technician-intermediate, emergency medical
    technician-paramedic, ambulance driver, other medical
    assistance or first aid personnel, or hospital emergency
    room personnel; or
        (13) When a defendant commits any felony and the
    defendant used, possessed, exercised control over, or
    otherwise directed an animal to assault a law enforcement
    officer engaged in the execution of his or her official
    duties or in furtherance of the criminal activities of an
    organized gang in which the defendant is engaged.
    (b-1) For the purposes of this Section, "organized gang"
has the meaning ascribed to it in Section 10 of the Illinois
Streetgang Terrorism Omnibus Prevention Act.
    (c) The court may impose an extended term sentence under
Section 5-8-2 upon any offender who was convicted of aggravated
criminal sexual assault or predatory criminal sexual assault of
a child under subsection (a)(1) of Section 12-14.1 of the
Criminal Code of 1961 where the victim was under 18 years of
age at the time of the commission of the offense.
    (d) The court may impose an extended term sentence under
Section 5-8-2 upon any offender who was convicted of unlawful
use of weapons under Section 24-1 of the Criminal Code of 1961
for possessing a weapon that is not readily distinguishable as
one of the weapons enumerated in Section 24-1 of the Criminal
Code of 1961.
(Source: P.A. 94-131, eff. 7-7-05; 94-375, eff. 1-1-06; 94-556,
eff. 9-11-05; 94-819, eff. 5-31-06.)