HB4642ham003 97TH GENERAL ASSEMBLY

Rep. Darlene J. Senger

Filed: 3/22/2012

09700HB4642ham003 LRB097 13960 RLC 67409 a

AMENDMENT TO HOUSE BILL 4642

AMENDMENT NO. ______. Amend House Bill 4642 on page 1, line 5, by inserting ", 17-52.5," after "17-51"; and

on page 6, by inserting immediately after line 26 the following:

"(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."; and

on page 7, by inserting immediately below line 2 the following:

"(720 ILCS 5/17-52.5) (was 720 ILCS 5/16D-5.5)

Sec. 17-52.5. Unlawful use of encryption.

(a) For the purpose of this Section:

"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.

"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, 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. 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.

(Source: P.A. 95-942, eff. 1-1-09; 96-1551, eff. 7-1-11.)"; and

on page 8, line 13, by replacing "Section 1-2" with "Sections 1-2 and 2"; and

on page 9, line 18, by inserting after "person" the following: "within one week by transmitting any comment, request, suggestion, or proposal which is obscene with an intent to offend"; and

on page 11, by inserting immediately below line 3 the following:

"(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.)".