HB4642eng 97TH GENERAL ASSEMBLY

HB4642 Engrossed LRB097 13960 RLC 58571 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 changing Sections 17-51 and 17-55 as follows:

(720 ILCS 5/17-51) (was 720 ILCS 5/16D-3)

Sec. 17-51. Computer tampering.

(a) A person commits computer tampering when he or she knowingly and without the authorization of a computer's owner or in excess of the authority granted to him or her:

(1) Accesses or causes to be accessed a computer or any part thereof, a computer network, or a program or data;

(2) Accesses or causes to be accessed a computer or any part thereof, a computer network, or a program or data, and obtains data or services;

(3) Accesses or causes to be accessed a computer or any part thereof, a computer network, or a program or data, and damages or destroys the computer or alters, deletes, or removes a computer program or data;

(4) Inserts or attempts to insert a program into a computer or computer program knowing or having reason to know that such program contains information or commands that will or may:

(A) damage or destroy that computer, or any other computer subsequently accessing or being accessed by that computer;

(B) alter, delete, or remove a computer program or data from that computer, or any other computer program or data in a computer subsequently accessing or being accessed by that computer; or

(C) cause loss to the users of that computer or the users of a computer which accesses or which is accessed by such program; or

(5) Falsifies or forges electronic mail transmission information or other routing information in any manner in connection with the transmission of unsolicited bulk electronic mail through or into the computer network of an electronic mail service provider or its subscribers.

(a-1) A person commits computer tampering when he or she knowingly and without the authorization of an account holder or in excess of the authority granted to him or to her:

(1) accesses or causes to be accessed by any means an electronic mail (e-mail), instant messaging, or social networking website account;

(2) accesses or causes to be accessed by any means an electronic mail (e-mail), instant messaging, or social networking website account, and views the content of an electronic communication; or

(3) accesses or causes to be accessed by any means a computer or any part thereof, a computer network, electronic mail (e-mail), instant messaging, or social networking website account, and:

(A) deletes an electronic communication;

(B) transmits an electronic communication purporting to be the account holder; or

(C) changes the password for the account;

(4) accesses or causes to be accessed by any means a social networking website account, and:

(A) alters the privacy settings for the account holder's account; or

(B) gives himself, herself, or another access to view private content on the account holder's social networking website account; or

(5) accesses or causes to be accessed by any means a computer or any part thereof, a computer network, electronic mail (e-mail) account, instant messaging account, social networking website account and adds, deletes, or alters content.

(a-5) Distributing software to falsify routing information. It is unlawful for any person knowingly to sell, give, or otherwise distribute or possess with the intent to sell, give, or distribute software which:

(1) is primarily designed or produced for the purpose of facilitating or enabling the falsification of electronic mail transmission information or other routing information;

(2) has only a limited commercially significant purpose or use other than to facilitate or enable the falsification of electronic mail transmission information or other routing information; or

(3) is marketed by that person or another acting in concert with that person with that person's knowledge for use in facilitating or enabling the falsification of electronic mail transmission information or other routing information.

(a-10) For purposes of subsection (a), accessing a computer network is deemed to be with the authorization of a computer's owner if:

(1) the owner authorizes patrons, customers, or guests to access the computer network and the person accessing the computer network is an authorized patron, customer, or guest and complies with all terms or conditions for use of the computer network that are imposed by the owner; or

(2) the owner authorizes the public to access the computer network and the person accessing the computer network complies with all terms or conditions for use of the computer network that are imposed by the owner.

(b) Sentence.

(1) A person who commits computer tampering as set forth in subdivision (a)(1) or (a)(5) or subsection (a-5) of this Section is guilty of a Class B misdemeanor.

(2) A person who commits computer tampering as set forth in subdivision (a)(2) of this Section is guilty of a Class A misdemeanor and a Class 4 felony for the second or subsequent offense.

(3) A person who commits computer tampering as set forth in subdivision (a)(3) or (a)(4) of this Section is guilty of a Class 4 felony and a Class 3 felony for the second or subsequent offense.

(3.1) A person who commits computer tampering as set forth in subdivision (a-1)(1) of this Section is guilty of a Class B misdemeanor for which the court shall impose a minimum fine of $500 or, if public or community service is established in the county in which the offender was convicted, 30 hours of public or community service.

(3.2) A person who commits computer tampering as set forth in subdivision (a-1)(2) or (a-1)(4) of this Section is guilty of a Class A misdemeanor for a first violation for which the court shall impose a minimum fine of $1,000 or, if public or community service is established in the county in which the offender was convicted, 80 hours of public or community service and a Class 4 felony for a second or subsequent violation.

(3.3) A person who commits computer tampering as set forth in subdivision (a-1)(3) or (a-1)(5) of this Section is guilty of a Class 4 felony.

(4) If an injury arises from the transmission of unsolicited bulk electronic mail, the injured person, other than an electronic mail service provider, may also recover attorney's fees and costs, and may elect, in lieu of actual damages, to recover the lesser of $10 for each unsolicited bulk electronic mail message transmitted in violation of this Section, or $25,000 per day. The injured person shall not have a cause of action against the electronic mail service provider that merely transmits the unsolicited bulk electronic mail over its computer network.

(5) If an injury arises from the transmission of unsolicited bulk electronic mail, an injured electronic mail service provider may also recover attorney's fees and costs, and may elect, in lieu of actual damages, to recover the greater of $10 for each unsolicited electronic mail advertisement transmitted in violation of this Section, or $25,000 per day.

(6) 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.

(c) Whoever suffers loss by reason of a violation of subdivision (a)(4) of this Section may, in a civil action against the violator, obtain appropriate relief. In a civil action under this Section, the court may award to the prevailing party reasonable attorney's fees and other litigation expenses.

(Source: P.A. 95-326, eff. 1-1-08; 96-1000, eff. 7-2-10; 96-1551, eff. 7-1-11.)

(720 ILCS 5/17-55)

Sec. 17-55. Definitions. For the purposes of Sections 17-50 through 17-53:

In addition to its meaning as defined in Section 15-1 of this Code, "property" means: (1) electronic impulses; (2) electronically produced data; (3) confidential, copyrighted, or proprietary information; (4) private identification codes or numbers which permit access to a computer by authorized computer users or generate billings to consumers for purchase of goods and services, including but not limited to credit card transactions and telecommunications services or permit electronic fund transfers; (5) software or programs in either machine or human readable form; or (6) any other tangible or intangible item relating to a computer or any part thereof.

"Access" means to use, instruct, communicate with, store data in, retrieve or intercept data from, or otherwise utilize any services of, a computer, a network, or data.

"Account holder" means the person or entity to whom or to which an electronic mail or instant message service account, social networking website profile, or other virtual identity is registered.

"Services" includes but is not limited to computer time, data manipulation, or storage functions.

"Vital services or operations" means those services or operations required to provide, operate, maintain, and repair network cabling, transmission, distribution, or computer facilities necessary to ensure or protect the public health, safety, or welfare. Those services or operations include, but are not limited to, services provided by medical personnel or institutions, fire departments, emergency services agencies, national defense contractors, armed forces or militia personnel, private and public utility companies, or law enforcement agencies.

(Source: P.A. 96-1551, eff. 7-1-11.)

Section 10. The Harassing and Obscene Communications Act is amended by changing Sections 1-2 and 2 as follows:

(720 ILCS 135/1-2)

Sec. 1-2. Harassment through electronic communications.

(a) Harassment through electronic communications is the use of electronic communication for any of the following purposes:

(1) Transmitting Making any comment, request, suggestion or proposal which is obscene with an intent to offend;

(2) Interrupting, with the intent to harass, the telephone service or the electronic communication service of any person;

(3) Transmitting to any person, with the intent to harass and regardless of whether the communication is read in its entirety or at all, any file, document, or other communication which prevents that person from using his or her telephone service or electronic communications device;

(3.1) Transmitting an electronic communication or knowingly inducing a person to transmit an electronic communication for the purpose of harassing another person who is under 13 years of age, regardless of whether the person under 13 years of age consents to the harassment, if the defendant is at least 16 years of age at the time of the commission of the offense;

(4) Threatening injury to the person or to the property of the person to whom an electronic communication is directed or to any of his or her family or household members; or

(4.1) Knowingly and by any means making repeated, unwanted, and harassing communication to another person within one week by transmitting any comment, request, suggestion, or proposal which is obscene with an intent to offend; or

(5) Knowingly permitting any electronic communications device to be used for any of the purposes mentioned in this subsection (a).

(b) As used in this Act:

(1) "Electronic communication" means any transfer of signs, signals, writings, images, 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) "Family or household member" includes spouses, former spouses, parents, children, stepchildren and other persons related by blood or by present or prior marriage, persons who share or formerly shared a common dwelling, persons who have or allegedly share a blood relationship through a child, persons who have or have had a dating or engagement relationship, and persons with disabilities and their personal assistants. For purposes of this Act, neither a casual acquaintanceship nor ordinary fraternization between 2 individuals in business or social contexts shall be deemed to constitute a dating relationship.

(c) 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.

(Source: P.A. 96-328, eff. 8-11-09; 97-303, eff. 8-11-11.)

(720 ILCS 135/2) (from Ch. 134, par. 16.5)

Sec. 2. Sentence.

(a) Except as provided in subsection (b), a person who violates any of the provisions of Section 1, 1-1, or 1-2, other than paragraph (4.1) of subsection (a) of Section 1-2, of this Act is guilty of a Class B misdemeanor. Except as provided in subsection (b), a violation of paragraph (4.1) of subsection (a) of Section 1-2 is a Class A misdemeanor. Except as provided in subsection (b), a second or subsequent violation of Section 1, 1-1, or 1-2 of this Act is a Class A misdemeanor, for which the court shall impose a minimum of 14 days in jail or, if public or community service is established in the county in which the offender was convicted, 240 hours of public or community service.

(b) In any of the following circumstances, a person who violates Section 1, 1-1, or 1-2 of this Act shall be guilty of a Class 4 felony:

(1) The person has 3 or more prior violations in the last 10 years of harassment by telephone under Section 1-1 of this Act, harassment through electronic communications under Section 1-2 of this Act, or any similar offense of any state;

(2) The person has previously violated the harassment by telephone provisions of Section 1-1 of this Act or the harassment through electronic communications provisions of Section 1-2 of this Act or committed any similar offense in any state with the same victim or a member of the victim's family or household;

(3) At the time of the offense, the offender was under conditions of bail, probation, mandatory supervised release or was the subject of an order of protection, in this or any other state, prohibiting contact with the victim or any member of the victim's family or household;

(4) In the course of the offense, the offender threatened to kill the victim or any member of the victim's family or household;

(5) The person has been convicted in the last 10 years of a forcible felony as defined in Section 2-8 of the Criminal Code of 1961;

(6) The person violates paragraph (4.1) of Section 1-1 or paragraph (3.1) of subsection (a) of Section 1-2; or

(7) The person was at least 18 years of age at the time of the commission of the offense and the victim was under 18 years of age at the time of the commission of the offense.

(Source: P.A. 95-984, eff. 6-1-09.)