HB4825 94TH GENERAL ASSEMBLY

LRB094 13140 LCT 52604 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
HB4825

Introduced 01/18/06, by Rep. Jack D. Franks

SYNOPSIS AS INTRODUCED:

New Act
5 ILCS 140/7	from Ch. 116, par. 207
30 ILCS 105/5.663 new
720 ILCS 5/16D-8 new

Creates the Family and School Communications Protection Registry Act. Requires the Attorney General to establish and operate, or contract with a qualified third party to establish and operate, a Family and School Communications Protection Registry. Provides that a parent, guardian, individual, or an entity, who is responsible for a contact point to which a minor may have access, may register that contact point with the Attorney General. Provides that a person shall not send, cause to be sent, or conspire with a third party to send a message to a contact point that has been registered for more than 30 calendar days with the Attorney General if the primary purpose of the message is to, directly or indirectly, advertise or otherwise link to a message that advertises a product or service that a minor is prohibited by law from purchasing, viewing, possessing, participating in, or otherwise receiving. Provides that, except in specified instances, a person shall not release information concerning another person or provide access to contact points or other information contained on the Family and School Communications Protection Registry. Establishes certain exceptions to a violation of the Act. Provides that if the Attorney General has reason to believe that a person has violated the Act, he or she may investigate the business transaction of that person. Provides civil and criminal penalties for a violation of the Act. Amends the Freedom of Information Act to exempt information contained in the Family and School Communications Protection Registry from the requirements of the Act. Amends the State Finance Act to create the Family and School Communications Registry Fund. Amends the Criminal Code of 1961. Provides that a person commits the offense of communication registry violation when he or she knowingly violates the Family and School Communications Protection Registry Act. Provides that a person who commits the offense of communication registry violation shall be guilty of a Class B misdemeanor for the first offense, a Class A misdemeanor for the second offense, and a Class 4 felony for each subsequent offense after the second offense. Effective immediately.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning business.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Family and School Communications Protection Registry Act.

Section 5. Definitions. In this Act:

"Contact point" means any electronic identification to which messages can be sent, including any of the following:

(1) an instant message identity;

(2) a wireless telephone, personal digital assistant, pager number, or any other similar wireless communication device;

(3) a facsimile number;

(4) an electronic mail address; or

(5) any other electronic address subject to rules prescribed under this Act by the Attorney General.

"Internet domain name" means a globally unique, hierarchical reference to an Internet host or service, assigned through centralized Internet authorities, comprising a series of character strings separated by periods, with the right-most string specifying the top of the hierarchy.

"Minor" means an individual under the age of 18 years.

"Person" means an individual, corporation, association, partnership, or any other legal entity.

"Registry" means the Family and School Communications Protection Registry.

Section 10. Family and School Communications Protection Registry.

(a) The Attorney General shall establish and operate, or contract with a qualified third party to establish and operate, a Family and School Communications Protection Registry.

(b) The Attorney General shall establish:

(1) procedures, to the extent possible, to prevent the use or disclosure of protected contact points;

(2) rules to ensure that a registrant meets the requirements of this Act;

(3) a mechanism for senders to verify compliance with the Registry that shall establish and follow industry standards to ensure that compliance with this Act is as easy as possible for responsible senders; and

(4) a mechanism whereby registered reports in violation of this Act may be tracked and compiled into a report.

(c) The Office of the Attorney General shall have access to the report of violations generated pursuant to item (4) of subsection (b) of this Section and shall use the report for the enforcement of this Act.

(d) The Family and School Communications Protection Registry shall be fully operational not later than April 1, 2007.

Section 15. Registration.

(a) A parent, guardian, or individual, or an entity described under subsection (b) of this Section, who is responsible for a contact point to which a minor may have access, may register that contact point with the Attorney General under rules prescribed by the Attorney General.

(b) Schools and other institutions or entities primarily serving minor children may register one or more contact points. An entity may make one registration for all contact points of the entity, including the entity's Internet domain name, under rules prescribed by the Attorney General.

(c) No fee or charge shall be assessed or incurred by a person registering a contact point under this Act.

(d) A registration as provided under this Section shall not be valid for longer than 3 years. If the contact point is established for a specific minor, the registration expires the year the minor turns 18 years of age.

(e) A registration may be revoked by the registrant upon notification to the Attorney General.

(f) A registration may be renewed by the registrant for an additional 3-year period upon notification to the Attorney General. No fee or charge shall be assessed or incurred by a registrant renewing a contact point under this subsection.

Section 20. Prohibited conduct; contact points.

(a) A person shall not send, cause to be sent, or conspire with a third party to send a message to a contact point that has been registered for more than 30 calendar days with the Attorney General if the primary purpose of the message is to, directly or indirectly, advertise or otherwise link to a message that advertises a product or service that a minor is prohibited by law from purchasing, viewing, possessing, participating in, or otherwise receiving. A person desiring to send a message described under this subsection (a), shall use the mechanism created by the Attorney General under item (3) of subsection (b) of Section 10.

(b) The consent of a minor or third party to receive the message is not a defense to a violation of subsection (a) of this Section.

Section 25. Fees. A person that sends a message as provided under Section 20 shall pay the Attorney General a fee for access to the mechanism created by the Attorney General under item (3) of subsection (b) of Section 10. The fee as determined by the Attorney General shall not exceed $0.01 per contact point checked against the Registry for each time a contact point is checked.

Section 30. Exceptions. A person is not in violation of this Act if he or she:

(1) is an intermediary between the sender and recipient in the transmission of an electronic message that violates this Act; or

(2) unknowingly provides transmission of an electronic message over his or her computer network or facilities that violate this Act.

Section 35. Release of information.

(a) Except as otherwise provided under this Act, a person shall not release information concerning another person or provide access to contact points or other information contained on the Registry, except as required by this Act.

(b) A person shall not:

(1) sell or use the Registry for any reason other than to meet the requirements of this Act; or

(2) access or attempt to access the Registry except as provided under this Act.

(c) The Registry is not subject to the Freedom of Information Act.

Section 40. Investigations. If the Attorney General has reason to believe that a person has violated this Act, he or she may investigate the business transaction of that person. The Attorney General may require that person to appear, at a reasonable time and place, to give information under oath and to produce such documents and evidence necessary to determine whether the person is in compliance with the requirements of this Act.

Section 45. Violation; civil penalties.

(a) A parent or guardian may bring a civil action, on behalf of his or her child, for messages sent to a contact point registered on the Registry.

(b) A person whose facilities were used to transmit a message sent to a contact point registered on the Registry may bring a civil action.

(c) The Attorney General may bring a civil action for a violation of this Act.

(d) A person bringing an action under this Section may recover one of the following:

(1) actual damages, including reasonable attorney's fees; or

(2) in lieu of actual damages, up to $1,000 per message received in violation of this Act to a maximum of $100,000 each day the violation occurs.

(e) In the civil action where the message sent to the contact point in violation of this Act was viewed by a person under the age of 18 and where civil damages are assessed for that message violation, the court shall increase those damages by trebling the assessed amount.

(f) In each action brought under this Section the prevailing party may be awarded reasonable attorney's fees if the action is found by the court to be frivolous.

Section 50. Immunity. A person who violates this Act shall be immune from civil liability for the violation, if he or she, in good faith, used the mechanism for senders to verify compliance with the Registry that was created by the Attorney General under subsection (b) of Section 10 of this Act.

Section 55. Affirmative defense. It shall be an affirmative defense to a civil action brought under this Act by an individual responsible for a contact point, if the sender proves that the individual affirmatively, expressly, and directly consented, and did not subsequently revoke the consent, to receive a message from that particular sender for the registered contact point.

This affirmative defense does not apply to criminal or civil actions brought by the Attorney General or to civil actions brought by an Internet service provider.

Section 60. Violation; criminal penalties. In addition to any civil penalties assessed under this Act, a violation of this Act shall also be a violation of Section 16D-8 of the Criminal Code of 1961.

Section 65. Family and School Communications Protection Registry Fund. There is hereby created the Family and School Communications Protection Registry Fund as a special fund in the State treasury. All fees and civil penalties collected pursuant to this Act shall be deposited into the Family and School Communications Protection Registry Fund. Not less than 20% of the moneys in the Fund shall be used, subject to appropriation, by the Attorney General for the costs of investigating, enforcing, and defending this Act and other Acts that are designed to protect Illinois' children while they are on the Internet. The remainder of the moneys in the Fund shall be used, subject to appropriation, by the Attorney General for the creation and maintenance of the Family and School Communications Protection Registry.

Section 200. The Freedom of Information Act is amended by changing Section 7 as follows:

(5 ILCS 140/7) (from Ch. 116, par. 207)

Sec. 7. Exemptions.

(1) The following shall be exempt from inspection and copying:

(a) Information specifically prohibited from disclosure by federal or State law or rules and regulations adopted under federal or State law.

(b) Information that, if disclosed, would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual subjects of the information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy. Information exempted under this subsection (b) shall include but is not limited to:

(i) files and personal information maintained with respect to clients, patients, residents, students or other individuals receiving social, medical, educational, vocational, financial, supervisory or custodial care or services directly or indirectly from federal agencies or public bodies;

(ii) personnel files and personal information maintained with respect to employees, appointees or elected officials of any public body or applicants for those positions;

(iii) files and personal information maintained with respect to any applicant, registrant or licensee by any public body cooperating with or engaged in professional or occupational registration, licensure or discipline;

(iv) information required of any taxpayer in connection with the assessment or collection of any tax unless disclosure is otherwise required by State statute;

(v) information revealing the identity of persons who file complaints with or provide information to administrative, investigative, law enforcement or penal agencies; provided, however, that identification of witnesses to traffic accidents, traffic accident reports, and rescue reports may be provided by agencies of local government, except in a case for which a criminal investigation is ongoing, without constituting a clearly unwarranted per se invasion of personal privacy under this subsection; and

(vi) the names, addresses, or other personal information of participants and registrants in park district, forest preserve district, and conservation district programs.

(c) Records compiled by any public body for administrative enforcement proceedings and any law enforcement or correctional agency for law enforcement purposes or for internal matters of a public body, but only to the extent that disclosure would:

(i) interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency;

(ii) interfere with pending administrative enforcement proceedings conducted by any public body;

(iii) deprive a person of a fair trial or an impartial hearing;

(iv) unavoidably disclose the identity of a confidential source or confidential information furnished only by the confidential source;

(v) disclose unique or specialized investigative techniques other than those generally used and known or disclose internal documents of correctional agencies related to detection, observation or investigation of incidents of crime or misconduct;

(vi) constitute an invasion of personal privacy under subsection (b) of this Section;

(vii) endanger the life or physical safety of law enforcement personnel or any other person; or

(viii) obstruct an ongoing criminal investigation.

(d) Criminal history record information maintained by State or local criminal justice agencies, except the following which shall be open for public inspection and copying:

(i) chronologically maintained arrest information, such as traditional arrest logs or blotters;

(ii) the name of a person in the custody of a law enforcement agency and the charges for which that person is being held;

(iii) court records that are public;

(iv) records that are otherwise available under State or local law; or

(v) records in which the requesting party is the individual identified, except as provided under part (vii) of paragraph (c) of subsection (1) of this Section.

"Criminal history record information" means data identifiable to an individual and consisting of descriptions or notations of arrests, detentions, indictments, informations, pre-trial proceedings, trials, or other formal events in the criminal justice system or descriptions or notations of criminal charges (including criminal violations of local municipal ordinances) and the nature of any disposition arising therefrom, including sentencing, court or correctional supervision, rehabilitation and release. The term does not apply to statistical records and reports in which individuals are not identified and from which their identities are not ascertainable, or to information that is for criminal investigative or intelligence purposes.

(e) Records that relate to or affect the security of correctional institutions and detention facilities.

(f) Preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body. The exemption provided in this paragraph (f) extends to all those records of officers and agencies of the General Assembly that pertain to the preparation of legislative documents.

(g) Trade secrets and commercial or financial information obtained from a person or business where the trade secrets or information are proprietary, privileged or confidential, or where disclosure of the trade secrets or information may cause competitive harm, including:

(i) All information determined to be confidential under Section 4002 of the Technology Advancement and Development Act.

(ii) All trade secrets and commercial or financial information obtained by a public body, including a public pension fund, from a private equity fund or a privately held company within the investment portfolio of a private equity fund as a result of either investing or evaluating a potential investment of public funds in a private equity fund. The exemption contained in this item does not apply to the aggregate financial performance information of a private equity fund, nor to the identity of the fund's managers or general partners. The exemption contained in this item does not apply to the identity of a privately held company within the investment portfolio of a private equity fund, unless the disclosure of the identity of a privately held company may cause competitive harm.

Nothing contained in this paragraph (g) shall be construed to prevent a person or business from consenting to disclosure.

(h) Proposals and bids for any contract, grant, or agreement, including information which if it were disclosed would frustrate procurement or give an advantage to any person proposing to enter into a contractor agreement with the body, until an award or final selection is made. Information prepared by or for the body in preparation of a bid solicitation shall be exempt until an award or final selection is made.

(i) Valuable formulae, computer geographic systems, designs, drawings and research data obtained or produced by any public body when disclosure could reasonably be expected to produce private gain or public loss. The exemption for "computer geographic systems" provided in this paragraph (i) does not extend to requests made by news media as defined in Section 2 of this Act when the requested information is not otherwise exempt and the only purpose of the request is to access and disseminate information regarding the health, safety, welfare, or legal rights of the general public.

(j) Test questions, scoring keys and other examination data used to administer an academic examination or determined the qualifications of an applicant for a license or employment.

(k) Architects' plans, engineers' technical submissions, and other construction related technical documents for projects not constructed or developed in whole or in part with public funds and the same for projects constructed or developed with public funds, but only to the extent that disclosure would compromise security, including but not limited to water treatment facilities, airport facilities, sport stadiums, convention centers, and all government owned, operated, or occupied buildings.

(l) Library circulation and order records identifying library users with specific materials.

(m) Minutes of meetings of public bodies closed to the public as provided in the Open Meetings Act until the public body makes the minutes available to the public under Section 2.06 of the Open Meetings Act.

(n) Communications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil or administrative proceeding upon the request of an attorney advising the public body, and materials prepared or compiled with respect to internal audits of public bodies.

(o) Information received by a primary or secondary school, college or university under its procedures for the evaluation of faculty members by their academic peers.

(p) Administrative or technical information associated with automated data processing operations, including but not limited to software, operating protocols, computer program abstracts, file layouts, source listings, object modules, load modules, user guides, documentation pertaining to all logical and physical design of computerized systems, employee manuals, and any other information that, if disclosed, would jeopardize the security of the system or its data or the security of materials exempt under this Section.

(q) Documents or materials relating to collective negotiating matters between public bodies and their employees or representatives, except that any final contract or agreement shall be subject to inspection and copying.

(r) Drafts, notes, recommendations and memoranda pertaining to the financing and marketing transactions of the public body. The records of ownership, registration, transfer, and exchange of municipal debt obligations, and of persons to whom payment with respect to these obligations is made.

(s) The records, documents and information relating to real estate purchase negotiations until those negotiations have been completed or otherwise terminated. With regard to a parcel involved in a pending or actually and reasonably contemplated eminent domain proceeding under Article VII of the Code of Civil Procedure, records, documents and information relating to that parcel shall be exempt except as may be allowed under discovery rules adopted by the Illinois Supreme Court. The records, documents and information relating to a real estate sale shall be exempt until a sale is consummated.

(t) Any and all proprietary information and records related to the operation of an intergovernmental risk management association or self-insurance pool or jointly self-administered health and accident cooperative or pool.

(u) Information concerning a university's adjudication of student or employee grievance or disciplinary cases, to the extent that disclosure would reveal the identity of the student or employee and information concerning any public body's adjudication of student or employee grievances or disciplinary cases, except for the final outcome of the cases.

(v) Course materials or research materials used by faculty members.

(w) Information related solely to the internal personnel rules and practices of a public body.

(x) Information contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of a public body responsible for the regulation or supervision of financial institutions or insurance companies, unless disclosure is otherwise required by State law.

(y) Information the disclosure of which is restricted under Section 5-108 of the Public Utilities Act.

(z) Manuals or instruction to staff that relate to establishment or collection of liability for any State tax or that relate to investigations by a public body to determine violation of any criminal law.

(aa) Applications, related documents, and medical records received by the Experimental Organ Transplantation Procedures Board and any and all documents or other records prepared by the Experimental Organ Transplantation Procedures Board or its staff relating to applications it has received.

(bb) Insurance or self insurance (including any intergovernmental risk management association or self insurance pool) claims, loss or risk management information, records, data, advice or communications.

(cc) Information and records held by the Department of Public Health and its authorized representatives relating to known or suspected cases of sexually transmissible disease or any information the disclosure of which is restricted under the Illinois Sexually Transmissible Disease Control Act.

(dd) Information the disclosure of which is exempted under Section 30 of the Radon Industry Licensing Act.

(ee) Firm performance evaluations under Section 55 of the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act.

(ff) Security portions of system safety program plans, investigation reports, surveys, schedules, lists, data, or information compiled, collected, or prepared by or for the Regional Transportation Authority under Section 2.11 of the Regional Transportation Authority Act or the St. Clair County Transit District under the Bi-State Transit Safety Act.

(gg) Information the disclosure of which is restricted and exempted under Section 50 of the Illinois Prepaid Tuition Act.

(hh) Information the disclosure of which is exempted under the State Officials and Employees Ethics Act.

(ii) Beginning July 1, 1999, information that would disclose or might lead to the disclosure of secret or confidential information, codes, algorithms, programs, or private keys intended to be used to create electronic or digital signatures under the Electronic Commerce Security Act.

(jj) Information contained in a local emergency energy plan submitted to a municipality in accordance with a local emergency energy plan ordinance that is adopted under Section 11-21.5-5 of the Illinois Municipal Code.

(kk) Information and data concerning the distribution of surcharge moneys collected and remitted by wireless carriers under the Wireless Emergency Telephone Safety Act.

(ll) Vulnerability assessments, security measures, and response policies or plans that are designed to identify, prevent, or respond to potential attacks upon a community's population or systems, facilities, or installations, the destruction or contamination of which would constitute a clear and present danger to the health or safety of the community, but only to the extent that disclosure could reasonably be expected to jeopardize the effectiveness of the measures or the safety of the personnel who implement them or the public. Information exempt under this item may include such things as details pertaining to the mobilization or deployment of personnel or equipment, to the operation of communication systems or protocols, or to tactical operations.

(mm) Maps and other records regarding the location or security of a utility's generation, transmission, distribution, storage, gathering, treatment, or switching facilities.

(nn) Law enforcement officer identification information or driver identification information compiled by a law enforcement agency or the Department of Transportation under Section 11-212 of the Illinois Vehicle Code.

(oo) Records and information provided to a residential health care facility resident sexual assault and death review team or the Residential Health Care Facility Resident Sexual Assault and Death Review Teams Executive Council under the Residential Health Care Facility Resident Sexual Assault and Death Review Team Act.

(pp) Information provided to the predatory lending database created pursuant to Article 3 of the Residential Real Property Disclosure Act, except to the extent authorized under that Article.

(qq) (pp) Defense budgets and petitions for certification of compensation and expenses for court appointed trial counsel as provided under Sections 10 and 15 of the Capital Crimes Litigation Act. This subsection (qq) (pp) shall apply until the conclusion of the trial and appeal of the case, even if the prosecution chooses not to pursue the death penalty prior to trial or sentencing.

(rr) Information contained in the Family and School Communications Protection Registry created pursuant to the Family and School Communications Protection Registry Act.

(2) This Section does not authorize withholding of information or limit the availability of records to the public, except as stated in this Section or otherwise provided in this Act.

(Source: P.A. 93-43, eff. 7-1-03; 93-209, eff. 7-18-03; 93-237, eff. 7-22-03; 93-325, eff. 7-23-03, 93-422, eff. 8-5-03; 93-577, eff. 8-21-03; 93-617, eff. 12-9-03; 94-280, eff. 1-1-06; 94-508, eff. 1-1-06; 94-664, eff. 1-1-06; revised 8-29-05.)

Section 300. The State Finance Act is amended by adding Section 5.663 as follows:

(30 ILCS 105/5.663 new)

Sec. 5.663. The Family and School Communications Protection Registry Fund.

Section 400. The Criminal Code of 1961 is amended by adding Section 16D-8 as follows:

(720 ILCS 5/16D-8 new)

Sec. 16D-8. Communication registry violation.

(a) A person commits the offense of communication registry violation when he or she knowingly violates the Family and School Communications Protection Registry Act.

(b) A person who commits the offense of communication registry violation as set forth in subsection (a) of this Section shall be guilty of a Class B misdemeanor for the first offense, a Class A misdemeanor for the second offense, and a Class 4 felony for each subsequent offense after the second offense.

(c) The provisions of this Section shall not be construed to limit any person's right to pursue any additional civil remedy otherwise allowed by law.

(d) Upon conviction of a person under Section 16D-5, the court shall authorize the Attorney General to seize and sell all property used in the commission of the violation or other interest declared forfeited under this Section, unless such property is required by law to be destroyed or is harmful to the public.

(e) A person who commits the offense of communication registry violation shall be immune from prosecution for the offense if he or she, in good faith, used the mechanism for senders to verify compliance with the Registry that was created by the Attorney General under subsection (b) of Section 10 of the Family and School Communications Protection Registry Act.

Section 999. Effective date. This Act takes effect upon becoming law.