HB0039 95TH GENERAL ASSEMBLY


 


 
95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
HB0039

 

Introduced 1/19/2007___________, by

 

SYNOPSIS AS INTRODUCED:
 
720 ILCS 5/14-3   from Ch. 38, par. 14-3

    Amends the Criminal Code of 1961. Includes, in the activities that are exempt from the Eavesdropping Article of the Code, intercepting, recording, or listening to, with the approval of the State's Attorney, a conversation or electronic communication where a law enforcement officer, or a person acting at the direction of law enforcement, is a party to the conversation or electronic communication and has consented to it being intercepted or recorded in the course of an investigation of child pornography.


LRB095 03732 RLC 23759 b

 

 

A BILL FOR

 

HB0039 LRB095 03732 RLC 23759 b

1     AN ACT concerning criminal law.
 
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
 
4     Section 5. The Criminal Code of 1961 is amended by changing
5 Section 14-3 as follows:
 
6     (720 ILCS 5/14-3)  (from Ch. 38, par. 14-3)
7     Sec. 14-3. Exemptions. The following activities shall be
8 exempt from the provisions of this Article:
9     (a) Listening to radio, wireless and television
10 communications of any sort where the same are publicly made;
11     (b) Hearing conversation when heard by employees of any
12 common carrier by wire incidental to the normal course of their
13 employment in the operation, maintenance or repair of the
14 equipment of such common carrier by wire so long as no
15 information obtained thereby is used or divulged by the hearer;
16     (c) Any broadcast by radio, television or otherwise whether
17 it be a broadcast or recorded for the purpose of later
18 broadcasts of any function where the public is in attendance
19 and the conversations are overheard incidental to the main
20 purpose for which such broadcasts are then being made;
21     (d) Recording or listening with the aid of any device to
22 any emergency communication made in the normal course of
23 operations by any federal, state or local law enforcement

 

 

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1 agency or institutions dealing in emergency services,
2 including, but not limited to, hospitals, clinics, ambulance
3 services, fire fighting agencies, any public utility,
4 emergency repair facility, civilian defense establishment or
5 military installation;
6     (e) Recording the proceedings of any meeting required to be
7 open by the Open Meetings Act, as amended;
8     (f) Recording or listening with the aid of any device to
9 incoming telephone calls of phone lines publicly listed or
10 advertised as consumer "hotlines" by manufacturers or
11 retailers of food and drug products. Such recordings must be
12 destroyed, erased or turned over to local law enforcement
13 authorities within 24 hours from the time of such recording and
14 shall not be otherwise disseminated. Failure on the part of the
15 individual or business operating any such recording or
16 listening device to comply with the requirements of this
17 subsection shall eliminate any civil or criminal immunity
18 conferred upon that individual or business by the operation of
19 this Section;
20     (g) With prior notification to the State's Attorney of the
21 county in which it is to occur, recording or listening with the
22 aid of any device to any conversation where a law enforcement
23 officer, or any person acting at the direction of law
24 enforcement, is a party to the conversation and has consented
25 to it being intercepted or recorded under circumstances where
26 the use of the device is necessary for the protection of the

 

 

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1 law enforcement officer or any person acting at the direction
2 of law enforcement, in the course of an investigation of a
3 forcible felony, a felony violation of the Illinois Controlled
4 Substances Act, a felony violation of the Cannabis Control Act,
5 a felony violation of the Methamphetamine Control and Community
6 Protection Act, or any "streetgang related" or "gang-related"
7 felony as those terms are defined in the Illinois Streetgang
8 Terrorism Omnibus Prevention Act. Any recording or evidence
9 derived as the result of this exemption shall be inadmissible
10 in any proceeding, criminal, civil or administrative, except
11 (i) where a party to the conversation suffers great bodily
12 injury or is killed during such conversation, or (ii) when used
13 as direct impeachment of a witness concerning matters contained
14 in the interception or recording. The Director of the
15 Department of State Police shall issue regulations as are
16 necessary concerning the use of devices, retention of tape
17 recordings, and reports regarding their use;
18     (g-5) With approval of the State's Attorney of the county
19 in which it is to occur, recording or listening with the aid of
20 any device to any conversation where a law enforcement officer,
21 or any person acting at the direction of law enforcement, is a
22 party to the conversation and has consented to it being
23 intercepted or recorded in the course of an investigation of
24 any offense defined in Article 29D of this Code. In all such
25 cases, an application for an order approving the previous or
26 continuing use of an eavesdropping device must be made within

 

 

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1 48 hours of the commencement of such use. In the absence of
2 such an order, or upon its denial, any continuing use shall
3 immediately terminate. The Director of State Police shall issue
4 rules as are necessary concerning the use of devices, retention
5 of tape recordings, and reports regarding their use.
6     Any recording or evidence obtained or derived in the course
7 of an investigation of any offense defined in Article 29D of
8 this Code shall, upon motion of the State's Attorney or
9 Attorney General prosecuting any violation of Article 29D, be
10 reviewed in camera with notice to all parties present by the
11 court presiding over the criminal case, and, if ruled by the
12 court to be relevant and otherwise admissible, it shall be
13 admissible at the trial of the criminal case.
14     This subsection (g-5) is inoperative on and after January
15 1, 2005. No conversations recorded or monitored pursuant to
16 this subsection (g-5) shall be inadmissible in a court of law
17 by virtue of the repeal of this subsection (g-5) on January 1,
18 2005;
19     (g-6) With approval of the State's Attorney of the county
20 in which it is to occur, intercepting, recording, or listening
21 with the aid of any device to any conversation or electronic
22 communication where a law enforcement officer, or any person
23 acting at the direction of law enforcement, is a party to the
24 conversation or electronic communication and has consented to
25 it being intercepted or recorded in the course of an
26 investigation of child pornography;

 

 

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1     (h) Recordings made simultaneously with a video recording
2 of an oral conversation between a peace officer, who has
3 identified his or her office, and a person stopped for an
4 investigation of an offense under the Illinois Vehicle Code;
5     (i) Recording of a conversation made by or at the request
6 of a person, not a law enforcement officer or agent of a law
7 enforcement officer, who is a party to the conversation, under
8 reasonable suspicion that another party to the conversation is
9 committing, is about to commit, or has committed a criminal
10 offense against the person or a member of his or her immediate
11 household, and there is reason to believe that evidence of the
12 criminal offense may be obtained by the recording;
13     (j) The use of a telephone monitoring device by either (1)
14 a corporation or other business entity engaged in marketing or
15 opinion research or (2) a corporation or other business entity
16 engaged in telephone solicitation, as defined in this
17 subsection, to record or listen to oral telephone solicitation
18 conversations or marketing or opinion research conversations
19 by an employee of the corporation or other business entity
20 when:
21         (i) the monitoring is used for the purpose of service
22     quality control of marketing or opinion research or
23     telephone solicitation, the education or training of
24     employees or contractors engaged in marketing or opinion
25     research or telephone solicitation, or internal research
26     related to marketing or opinion research or telephone

 

 

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1     solicitation; and
2         (ii) the monitoring is used with the consent of at
3     least one person who is an active party to the marketing or
4     opinion research conversation or telephone solicitation
5     conversation being monitored.
6     No communication or conversation or any part, portion, or
7 aspect of the communication or conversation made, acquired, or
8 obtained, directly or indirectly, under this exemption (j), may
9 be, directly or indirectly, furnished to any law enforcement
10 officer, agency, or official for any purpose or used in any
11 inquiry or investigation, or used, directly or indirectly, in
12 any administrative, judicial, or other proceeding, or divulged
13 to any third party.
14     When recording or listening authorized by this subsection
15 (j) on telephone lines used for marketing or opinion research
16 or telephone solicitation purposes results in recording or
17 listening to a conversation that does not relate to marketing
18 or opinion research or telephone solicitation; the person
19 recording or listening shall, immediately upon determining
20 that the conversation does not relate to marketing or opinion
21 research or telephone solicitation, terminate the recording or
22 listening and destroy any such recording as soon as is
23 practicable.
24     Business entities that use a telephone monitoring or
25 telephone recording system pursuant to this exemption (j) shall
26 provide current and prospective employees with notice that the

 

 

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1 monitoring or recordings may occur during the course of their
2 employment. The notice shall include prominent signage
3 notification within the workplace.
4     Business entities that use a telephone monitoring or
5 telephone recording system pursuant to this exemption (j) shall
6 provide their employees or agents with access to personal-only
7 telephone lines which may be pay telephones, that are not
8 subject to telephone monitoring or telephone recording.
9     For the purposes of this subsection (j), "telephone
10 solicitation" means a communication through the use of a
11 telephone by live operators:
12         (i) soliciting the sale of goods or services;
13         (ii) receiving orders for the sale of goods or
14     services;
15         (iii) assisting in the use of goods or services; or
16         (iv) engaging in the solicitation, administration, or
17     collection of bank or retail credit accounts.
18     For the purposes of this subsection (j), "marketing or
19 opinion research" means a marketing or opinion research
20 interview conducted by a live telephone interviewer engaged by
21 a corporation or other business entity whose principal business
22 is the design, conduct, and analysis of polls and surveys
23 measuring the opinions, attitudes, and responses of
24 respondents toward products and services, or social or
25 political issues, or both;
26     (k) Electronic recordings, including but not limited to, a

 

 

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1 motion picture, videotape, digital, or other visual or audio
2 recording, made of a custodial interrogation of an individual
3 at a police station or other place of detention by a law
4 enforcement officer under Section 5-401.5 of the Juvenile Court
5 Act of 1987 or Section 103-2.1 of the Code of Criminal
6 Procedure of 1963; and
7     (l) Recording the interview or statement of any person when
8 the person knows that the interview is being conducted by a law
9 enforcement officer or prosecutor and the interview takes place
10 at a police station that is currently participating in the
11 Custodial Interview Pilot Program established under the
12 Illinois Criminal Justice Information Act.
13 (Source: P.A. 93-206, eff. 7-18-03; 93-517, eff. 8-6-03;
14 93-605, eff. 11-19-03; 94-556, eff. 9-11-05.)