HB3251 100TH GENERAL ASSEMBLY

LRB100 10504 RLC 20719 b

100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB3251

Introduced , by Rep. Christine Winger

SYNOPSIS AS INTRODUCED:

720 ILCS 5/12-7.5

Amends the Criminal Code of 2012. Creates the offense of illegal electronic monitoring in the statute concerning cyberstalking. Provides that a person commits illegal electronic monitoring when he or she knowingly installs, conceals, or otherwise places an electronic tracking software or spyware on an electronic communication device without the consent of all owners and primary users of the device for the purpose of monitoring or following the user or users of the software. Provides exceptions. Provides that a first violation is a Class 4 felony and a second or subsequent conviction is a Class 3 felony. Defines "electronic communication device" and "electronic tracking software or spyware".

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

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 changing Section 12-7.5 as follows:

(720 ILCS 5/12-7.5)

Sec. 12-7.5. Cyberstalking and illegal electronic monitoring.

(a) A person commits cyberstalking when he or she engages in a course of conduct using electronic communication directed at a specific person, and he or she knows or should know that would cause a reasonable person to:

(1) fear for his or her safety or the safety of a third person; or

(2) suffer other emotional distress.

(a-3) A person commits cyberstalking when he or she, knowingly and without lawful justification, on at least 2 separate occasions, harasses another person through the use of electronic communication and:

(1) at any time transmits a threat of immediate or future bodily harm, sexual assault, confinement, or restraint and the threat is directed towards that person or a family member of that person; or

(2) places that person or a family member of that person in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement, or restraint; or

(3) at any time knowingly solicits the commission of an act by any person which would be a violation of this Code directed towards that person or a family member of that person.

(a-5) A person commits cyberstalking when he or she, knowingly and without lawful justification, creates and maintains an Internet website or webpage which is accessible to one or more third parties for a period of at least 24 hours, and which contains statements harassing another person and:

(1) which communicates a threat of immediate or future bodily harm, sexual assault, confinement, or restraint, where the threat is directed towards that person or a family member of that person, or

(2) which places that person or a family member of that person in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement, or restraint, or

(3) which knowingly solicits the commission of an act by any person which would be a violation of this Code directed towards that person or a family member of that person.

(a-10) Except as provided in subsection (c-5), a person commits illegal electronic monitoring when he or she knowingly installs, conceals, or otherwise places an electronic tracking software or spyware on an electronic communication device without the consent of all owners and primary users of the device for the purpose of monitoring or following the user or users of the software.

(b) Sentence. Cyberstalking and illegal electronic monitoring is a Class 4 felony; a second or subsequent conviction is a Class 3 felony.

(c) For purposes of this Section:

(1) "Course of conduct" means 2 or more acts, including but not limited to acts in which a defendant directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, threatens, or communicates to or about, a person, engages in other non-consensual contact, or interferes with or damages a person's property or pet. The incarceration in a penal institution of a person who commits the course of conduct is not a bar to prosecution under this Section.

(2) "Electronic communication" means any transfer of signs, signals, writings, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system. "Electronic communication" includes transmissions through an electronic device including, but not limited to, a telephone, cellular phone, computer, or pager, which communication includes, but is not limited to, e-mail, instant message, text message, or voice mail.

(2.1) "Electronic communication device" means an electronic device, including, but not limited to, a wireless telephone, personal digital assistant, or a portable or mobile computer, that is capable of transmitting images or pictures.

(2.2) "Electronic tracking software or spyware" means a computer program that tracks computer activity and is capable of recording and transmitting the information to third parties.

(3) "Emotional distress" means significant mental suffering, anxiety or alarm.

(4) "Harass" means to engage in a knowing and willful course of conduct directed at a specific person that alarms, torments, or terrorizes that person.

(5) "Non-consensual contact" means any contact with the victim that is initiated or continued without the victim's consent, including but not limited to being in the physical presence of the victim; appearing within the sight of the victim; approaching or confronting the victim in a public place or on private property; appearing at the workplace or residence of the victim; entering onto or remaining on property owned, leased, or occupied by the victim; or placing an object on, or delivering an object to, property owned, leased, or occupied by the victim.

(5.1) "Person" does not include the manufacturer of the electronic software or spyware, or a retail mercantile establishment as provided in paragraph (4) of subsection (c-5) of this Section.

(6) "Reasonable person" means a person in the victim's circumstances, with the victim's knowledge of the defendant and the defendant's prior acts.

(7) "Third party" means any person other than the person violating these provisions and the person or persons towards whom the violator's actions are directed.

(c-5) It is not a violation of this Section:

(1) if the installing, concealing, or placing of electronic tracking software or spyware on an electronic communication device is by, or at the direction of, a peace officer in furtherance of a criminal investigation and is carried out in accordance with applicable State and federal law;

(2) if the installing, concealing, or placing of electronic tracking software or spyware on an electronic communication device is by, or at the direction of, a parent or legal guardian who owns the device, and if the device is used solely for the purpose of monitoring the minor child of the parent or legal guardian when the child is the user of the device;

(3) if the electronic tracking software or spyware was installed by the manufacturer of the electronic communication device; or

(4) for a retail mercantile establishment, as defined in Section 16-0.1 of this Code, to track the location of customers within its establishment for commercial purposes.

(d) Telecommunications carriers, commercial mobile service providers, and providers of information services, including, but not limited to, Internet service providers and hosting service providers, are not liable under this Section, except for willful and wanton misconduct, by virtue of the transmission, storage, or caching of electronic communications or messages of others or by virtue of the provision of other related telecommunications, commercial mobile services, or information services used by others in violation of this Section.

(e) A defendant who directed the actions of a third party to violate this Section, under the principles of accountability set forth in Article 5 of this Code, is guilty of violating this Section as if the same had been personally done by the defendant, without regard to the mental state of the third party acting at the direction of the defendant.

(Source: P.A. 96-328, eff. 8-11-09; 96-686, eff. 1-1-10; 96-1000, eff. 7-2-10; 96-1551, eff. 7-1-11; 97-303, eff. 8-11-11; 97-311, eff. 8-11-11; 97-1109, eff. 1-1-13.)