SB0066sam002 99TH GENERAL ASSEMBLY

Sen. Ira I. Silverstein

Filed: 3/20/2015

09900SB0066sam002 LRB099 04020 MRW 33004 a

AMENDMENT TO SENATE BILL 66

AMENDMENT NO. ______. Amend Senate Bill 66 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Smart Phone Theft Protection Act.

Section 5. Definitions. As used in this Act:

"Appropriate law enforcement official" means the sheriff of the county where a dealer is located or, if the dealer is located within a municipality, the police chief of the municipality, provided, however, that the sheriff or police chief may designate an appropriate official of the county or municipality as applicable.

"Internet marketplace" or "online platform" means a digitally accessible platform that facilitates commercial transactions between buyers and community-rated sellers where the operator or the platform does not take possession of, or title to, the goods bought or sold.

"Law enforcement agency" means a duly authorized local, county, State, or federal law enforcement agency.

"Repair and refurbishment program" means a program, offered by a wireless telephone service provider, manufacturer, or retailer who is not primarily engaged in purchasing personal property of any type from a person who is not a wholesaler, through which used or previously owned wireless communications devices are restored to good working order.

"Trade-in program" means a program offered by a wireless telephone service provider, manufacturer, or retailer who is not primarily engaged in purchasing personal property of any type from a person who is not a wholesaler, pursuant to which used wireless communications devices are accepted from customers for trade-in when purchasing a new device or in exchange for a noncash credit usable only for the purchase of goods or services from the wireless telephone service provider, manufacturer, or retailer or a rebate from a manufacturer on the purchase of one of the manufacturer's wireless communications devices.

"Wireless communications device" means a hand-held cellular phone or other hand-held mobile device that (1) is built on a smart phone mobile operating system; (2) possesses advanced computing capability; (3) enables network connectivity; (4) enables the user to engage in voice communications via commercial mobile radio service, as defined in 47 CFR 20.3; and (5) is capable of operating on a long-term evolution network and successor wireless data network communication standards. Capabilities a wireless communication device may possess include, but are not limited to, built-in applications, Internet access, digital voice service, text messaging, email, and web browsing. "Wireless communications device" does not include a phone commonly referred to as a feature or messaging phone, a laptop computer, a tablet device, or a device that has only electronic reading capability.

"Wireless communications device dealer" or "dealer" means an individual, partnership, limited partnership, limited liability company, corporation, or other entity engaged in the business of buying or selling used wireless communications devices.

"Wireless communications device manufacturer" or "manufacturer" means an individual, partnership, limited partnership, limited liability company, corporation, or other entity engaged in the business of manufacturing wireless communications devices.

"Wireless telephone service provider" means a provider of wireless telephone services and its authorized dealers, distributors, and agents.

Section 10. Wireless communications devices; acquisition for resale; purchase or acquisition record required.

(a) Every wireless communications device dealer, including an agent, employee, or representative of the dealer, but not an internet marketplace, shall keep a written record at the time of each purchase or acquisition of a used wireless communications device for resale. The record must include the following:

(1) an accurate account or description of the wireless communications device purchased or acquired;

(2) the date, time, and place or the online platform the wireless communications device was purchased or acquired;

(3) the name and address of the person selling or delivering the wireless communications device;

(4) the number of the check or electronic transfer used to purchase the wireless communications device;

(5) the number from an identification document issued by any state, federal, or foreign government if the document includes the person's photograph, full name, birth date, and signature; and

(6) a statement signed by the seller, under penalty of perjury, attesting that the wireless communications device is not stolen and is free of any liens or encumbrances and the seller has the right to sell it.

(a-5) A wireless communications device dealer covered by this Section may maintain the records required by subsection (a) of this Section in an electronic form approved by the appropriate law enforcement official.

(b) Records required to be maintained under this Section shall be retained by the wireless communications device dealer for a period of 3 years.

(c) The record, as well as the wireless communications device purchased or received, shall at all reasonable times be available for inspection by any law enforcement agency.

(d) No record is required for wireless communications devices purchased from merchants, manufacturers, or wholesale dealers having an established place of business, but a bill of sale or other evidence of open or legitimate purchase of the wireless communications device shall be obtained and kept by the wireless communications device dealer, which must be shown upon demand to any law enforcement agency.

(e) Except as otherwise provided in this Section, a wireless communications device dealer or the dealer's agent, employee, or representative may not disclose personal information received pursuant to subsection (a) concerning a customer without the customer's consent unless the disclosure is made in response to a request from a law enforcement agency. A wireless communications device dealer must implement reasonable safeguards to protect the security of the personal information and prevent unauthorized access to or disclosure of the information. For purposes of this Section, "personal information" is any individually identifiable information gathered in connection with a record under subsection (a).

Section 15. Records; prohibitions. A wireless communications device dealer, including an agent, employee, or representative of the dealer, shall not:

(1) make any false entry in the records of transactions involving a used wireless communications device;

(2) falsify, obliterate, destroy, or remove from the place of business the records, books, or accounts relating to used wireless communications device transactions;

(3) refuse to allow the appropriate law enforcement agency to inspect records or any used wireless communications device in the dealer's possession during the ordinary hours of business or other times acceptable to both parties;

(4) fail to maintain a record of each used wireless communications device transaction for 3 years; or

(5) purchase a used wireless communications device from a person under the age of 18 years.

Section 20. Payment for used wireless communications devices. A wireless communications device dealer shall pay for purchases of all used wireless communications devices by check mailed to a specific address or by electronic transfer.

Section 25. Investigative holds; confiscation of property.

(a) Whenever a law enforcement official from any agency has probable cause to believe that a wireless communications device in the possession of a wireless communications device dealer is stolen or is evidence of a crime and notifies the dealer not to sell the item, the dealer shall not process or sell the item or remove or allow its removal from the premises. This investigative hold must be confirmed in writing by the originating agency within 72 hours and remain in effect for 120 days from the date of initial notification, until the investigative hold is canceled or renewed, or until a law enforcement notification to confiscate or directive to release is issued, whichever comes first.

(b) If a wireless communications device is identified as stolen or as evidence in a criminal case, a law enforcement official may:

(1) physically confiscate and remove the wireless communications device from the wireless communications device dealer pursuant to a written notification;

(2) place the wireless communications device on hold or extend the hold under subsection (a) and leave the device at the premises; or

(3) direct its release to a registered owner or owner's agent.

(c) When an item is confiscated, the law enforcement agency doing so shall provide identification upon request of the wireless communications device dealer, and shall provide the name and telephone number of the confiscating agency and investigator and the case number related to the confiscation.

(d) When an investigative hold or notification to confiscate is no longer necessary, the law enforcement official or designee shall notify the wireless communications device dealer.

(e) A wireless communications device dealer may sell or otherwise dispose of the wireless communications device if: (1) a notification to confiscate is not issued during the investigative hold; or (2) a law enforcement official does not physically remove the wireless communications device from the premises within 15 calendar days from issuance of a notification to confiscate.

(f) If a wireless communications device dealer is required to hold the wireless communications device at the direction of law enforcement for purposes of investigation or prosecution, or if the device is seized by law enforcement, the wireless communications device dealer and any other victim is entitled to seek restitution, including any out-of-pocket expenses for storage and lost profit, in any criminal case that may arise from the investigation against the individual who sold the wireless communications device to the wireless communications device dealer.

Section 30. Video security cameras required.

(a) Each wireless communications device dealer shall install and maintain at each physical location video surveillance cameras, still digital cameras, or similar devices positioned to record or photograph a frontal view showing a readily identifiable image of the face of each seller of a wireless communications device who enters the physical location.

(b) The video camera or still digital camera must be kept in operating condition and must be shown upon request to a properly identified law enforcement officer for inspection. The camera must record and display the accurate date and time. The video camera or still digital camera must be turned on at all times when the physical location is open for business and at any other time when wireless communications devices are purchased or sold.

(c) Recordings and images required by subsection (a) shall be retained by the wireless communications device dealer for a minimum period of 120 days and shall at all reasonable times be open to the inspection of any properly identified law enforcement officer.

Section 35. Penalty. A wireless communications device dealer, or the agent, employee, or representative of the wireless communications device dealer, who intentionally violates a provision of this Act is guilty of a business offense and shall be fined more than $500 but not more than $1,000.

Section 40. Application of Act.

(a) This Act does not apply with respect to a wireless communications device returned pursuant to the return policies of the wireless communications device dealer, wireless telephone service provider, manufacturer, or retailer from whom it was originally purchased.

(b) This Act does not apply to:

(1) a wireless telephone service provider who acquires wireless communications devices as part of a trade-in or a repair and refurbishment program; or

(2) a manufacturer who acquires wireless communications devices as part of a trade-in program.

(c) This Act does not apply to wireless communications device dealers regulated under the Pawnbroker Regulation Act.

(d) This Act does not alter or affect a dealer's separate obligations under the Resale Dealers Act, if applicable, except that any violation under this Act, by a person covered by the Resale Dealers Act, which has the same or similar elements as a violation under the Resale Dealers Act shall be punished as provided under the Resale Dealers Act.".