96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB5518


 
Introduced 2/9/2010, by Rep. Mike Fortner
 
SYNOPSIS AS INTRODUCED:















720 ILCS 5/14-3










 Amends the Criminal Code of 1961. Provides that recording or listening with the aid of any device to incoming telephone calls of phone lines publicly listed or advertised as telephone answering services and utilized by business or professional organizations for such purposes is exempt from an eavesdropping violation. Provides that if such recordings contain information relevant to a criminal investigation, they must be turned over to local law enforcement authorities within 24 hours from the time of such recording or as soon as practicable and shall not be otherwise disseminated. Provides that failure on the part of the individual or business operating any such recording or listening device to comply with these requirements shall eliminate any civil or criminal immunity conferred upon that individual or business by the operation of the eavesdropping exemption provisions. Effective immediately.
















LRB096 17963 RLC 33332 b

















 


 


A BILL FOR









 











HB5518

LRB096 17963 RLC 33332 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)

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, any "streetgang
related" or "gang-related" 
7
felony as those terms are defined in the Illinois
Streetgang 
8
Terrorism Omnibus Prevention Act, or any felony offense 
9
involving any weapon listed in paragraphs (1) through (11) of 
10
subsection (a) of Section 24-1 of this Code.
Any recording or 
11
evidence derived
as the
result of this exemption shall be 
12
inadmissible in any proceeding, criminal,
civil or

13
administrative, except (i) where a party to the conversation 
14
suffers great
bodily injury or is killed during such 
15
conversation, or
(ii)
when used as direct impeachment of a 
16
witness concerning matters contained in
the interception or 
17
recording. The Director of the
Department of
State Police shall 
18
issue regulations as are necessary concerning the use of

19
devices, retention of tape recordings, and reports regarding 
20
their
use;

21
 (g-5) With approval of the State's Attorney of the county 
22
in
which it is to occur, recording or listening with the aid of 
23
any device to any
conversation where a law enforcement officer, 
24
or any person acting at the
direction of law enforcement, is a 
25
party to the conversation and has consented
to it being 
26
intercepted or recorded in the course of an investigation of 
 


 






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1
any
offense defined in Article 29D of this Code.
In all such 
2
cases, an application for an order approving
the previous or 
3
continuing use of an eavesdropping
device must be made within 
4
48 hours of the commencement of
such use. In the absence of 
5
such an order, or upon its denial,
any continuing use shall 
6
immediately terminate.
The Director of
State Police shall issue 
7
rules as are necessary concerning the use of
devices, retention 
8
of tape recordings, and reports regarding their use.

9
 Any recording or evidence obtained or derived in the course 
10
of an
investigation of any offense defined in Article 29D of 
11
this Code shall, upon
motion of the State's Attorney or 
12
Attorney General prosecuting any violation of
Article 29D, be 
13
reviewed in camera with notice to all parties present by the

14
court presiding over the criminal
case, and, if ruled by the 
15
court to be relevant and otherwise admissible,
it shall be 
16
admissible at the trial of the criminal
case.

17
 This subsection (g-5) is inoperative on and after January 
18
1, 2005.
No conversations recorded or monitored pursuant to 
19
this subsection (g-5)
shall be inadmissible in a court of law 
20
by virtue of the repeal of this
subsection (g-5) on January 1, 
21
2005;

22
 (g-6) With approval of the State's Attorney of the county 
23
in which it is to occur, recording or listening with the aid of 
24
any device to any conversation where a law enforcement officer, 
25
or any person acting at the direction of law enforcement, is a 
26
party to the conversation and has consented to it being 
 


 






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1
intercepted or recorded in the course of an investigation of 
2
child pornography, aggravated child pornography, indecent 
3
solicitation of a child, child abduction, luring of a minor, 
4
sexual exploitation of a child, predatory criminal sexual 
5
assault of a child, aggravated criminal sexual abuse in which 
6
the victim of the offense was at the time of the commission of 
7
the offense under 18 years of age, criminal sexual abuse by 
8
force or threat of force in which the victim of the offense was 
9
at the time of the commission of the offense under 18 years of 
10
age, or aggravated criminal sexual assault in which the victim 
11
of the offense was at the time of the commission of the offense 
12
under 18 years of age. In all such cases, an application for an 
13
order approving the previous or continuing use of an 
14
eavesdropping device must be made within 48 hours of the 
15
commencement of such use. In the absence of such an order, or 
16
upon its denial, any continuing use shall immediately 
17
terminate. The Director of State Police shall issue rules as 
18
are necessary concerning the use of devices, retention of 
19
recordings, and reports regarding their use.
Any recording or 
20
evidence obtained or derived in the course of an investigation 
21
of child pornography, aggravated child pornography, indecent 
22
solicitation of a child, child abduction, luring of a minor, 
23
sexual exploitation of a child, predatory criminal sexual 
24
assault of a child, aggravated criminal sexual abuse in which 
25
the victim of the offense was at the time of the commission of 
26
the offense under 18 years of age, criminal sexual abuse by 
 


 






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force or threat of force in which the victim of the offense was 
2
at the time of the commission of the offense under 18 years of 
3
age, or aggravated criminal sexual assault in which the victim 
4
of the offense was at the time of the commission of the offense 
5
under 18 years of age shall, upon motion of the State's 
6
Attorney or Attorney General prosecuting any case involving 
7
child pornography, aggravated child pornography, indecent 
8
solicitation of a child, child abduction, luring of a minor, 
9
sexual exploitation of a child, predatory criminal sexual 
10
assault of a child, aggravated criminal sexual abuse in which 
11
the victim of the offense was at the time of the commission of 
12
the offense under 18 years of age, criminal sexual abuse by 
13
force or threat of force in which the victim of the offense was 
14
at the time of the commission of the offense under 18 years of 
15
age, or aggravated criminal sexual assault in which the victim 
16
of the offense was at the time of the commission of the offense 
17
under 18 years of age, be reviewed in camera with notice to all 
18
parties present by the court presiding over the criminal case, 
19
and, if ruled by the court to be relevant and otherwise 
20
admissible, it shall be admissible at the trial of the criminal 
21
case. Absent such a ruling, any such recording or evidence 
22
shall not be admissible at the trial of the criminal case;
23
 (h) Recordings made simultaneously with the use of an 
24
in-car video camera recording of an oral
conversation between a 
25
uniformed peace officer, who has identified his or her office, 
26
and
a person in the presence of the peace officer whenever (i) 
 


 






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an officer assigned a patrol vehicle is conducting an 
2
enforcement stop; or (ii) patrol vehicle emergency lights are 
3
activated or would otherwise be activated if not for the need 
4
to conceal the presence of law enforcement.
5
 For the purposes of this subsection (h), "enforcement stop" 
6
means an action by a law enforcement officer in relation to 
7
enforcement and investigation duties, including but not 
8
limited to, traffic stops, pedestrian stops, abandoned vehicle 
9
contacts, motorist assists, commercial motor vehicle stops, 
10
roadside safety checks, requests for identification, or 
11
responses to requests for emergency assistance;
12
 (h-5) Recordings of utterances made by a person while in 
13
the presence of a uniformed peace officer and while an occupant 
14
of a police vehicle including, but not limited to, (i) 
15
recordings made simultaneously with the use of an in-car video 
16
camera and (ii) recordings made in the presence of the peace 
17
officer utilizing video or audio systems, or both, authorized 
18
by the law enforcement agency;
19
 (h-10) Recordings made simultaneously with a video camera 
20
recording during
the use of a taser or similar weapon or device 
21
by a peace officer if the weapon or device is equipped with 
22
such camera;
23
 (h-15) Recordings made under subsection (h), (h-5), or 
24
(h-10) shall be retained by the law enforcement agency that 
25
employs the peace officer who made the recordings for a storage 
26
period of 90 days, unless the recordings are made as a part of 
 


 






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an arrest or the recordings are deemed evidence in any 
2
criminal, civil, or administrative proceeding and then the 
3
recordings must only be destroyed upon a final disposition and 
4
an order from the court. Under no circumstances shall any 
5
recording be altered or erased prior to the expiration of the 
6
designated storage period. Upon completion of the storage 
7
period, the recording medium may be erased and reissued for 
8
operational use;

9
 (i) Recording of a conversation made by or at the request 
10
of a person, not a
law enforcement officer or agent of a law 
11
enforcement officer, who is a party
to the conversation, under 
12
reasonable suspicion that another party to the
conversation is 
13
committing, is about to commit, or has committed a criminal

14
offense against the person or a member of his or her immediate 
15
household, and
there is reason to believe that evidence of the 
16
criminal offense may be
obtained by the recording;

17
 (j) The use of a telephone monitoring device by either (1) 
18
a
corporation or other business entity engaged in marketing or 
19
opinion research
or (2) a corporation or other business entity 
20
engaged in telephone
solicitation, as
defined in this 
21
subsection, to record or listen to oral telephone solicitation

22
conversations or marketing or opinion research conversations 
23
by an employee of
the corporation or other business entity 
24
when:


25
  (i) the monitoring is used for the purpose of service 
26
 quality control of
marketing or opinion research or 
 


 






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 telephone solicitation, the education or
training of 
2
 employees or contractors
engaged in marketing or opinion 
3
 research or telephone solicitation, or internal
research 
4
 related to marketing or
opinion research or telephone

5
 solicitation; and


6
  (ii) the monitoring is used with the consent of at 
7
 least one person who
is an active party to the marketing or 
8
 opinion research conversation or
telephone solicitation 
9
 conversation being
monitored.

10
 No communication or conversation or any part, portion, or 
11
aspect of the
communication or conversation made, acquired, or 
12
obtained, directly or
indirectly,
under this exemption (j), may 
13
be, directly or indirectly, furnished to any law
enforcement 
14
officer, agency, or official for any purpose or used in any 
15
inquiry
or investigation, or used, directly or indirectly, in 
16
any administrative,
judicial, or other proceeding, or divulged 
17
to any third party.

18
 When recording or listening authorized by this subsection 
19
(j) on telephone
lines used for marketing or opinion research 
20
or telephone solicitation purposes
results in recording or

21
listening to a conversation that does not relate to marketing 
22
or opinion
research or telephone solicitation; the
person 
23
recording or listening shall, immediately upon determining 
24
that the
conversation does not relate to marketing or opinion 
25
research or telephone
solicitation, terminate the recording
or 
26
listening and destroy any such recording as soon as is 
 


 






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1
practicable.

2
 Business entities that use a telephone monitoring or 
3
telephone recording
system pursuant to this exemption (j) shall 
4
provide current and prospective
employees with notice that the 
5
monitoring or recordings may occur during the
course of their 
6
employment. The notice shall include prominent signage

7
notification within the workplace.

8
 Business entities that use a telephone monitoring or 
9
telephone recording
system pursuant to this exemption (j) shall 
10
provide their employees or agents
with access to personal-only 
11
telephone lines which may be pay telephones, that
are not 
12
subject to telephone monitoring or telephone recording.

13
 For the purposes of this subsection (j), "telephone 
14
solicitation" means a
communication through the use of a 
15
telephone by live operators:


16
  (i) soliciting the sale of goods or services;


17
  (ii) receiving orders for the sale of goods or 
18
 services;


19
  (iii) assisting in the use of goods or services; or


20
  (iv) engaging in the solicitation, administration, or 
21
 collection of bank
or
retail credit accounts.

22
 For the purposes of this subsection (j), "marketing or 
23
opinion research"
means
a marketing or opinion research 
24
interview conducted by a live telephone
interviewer engaged by 
25
a corporation or other business entity whose principal
business 
26
is the design, conduct, and analysis of polls and surveys 
 


 






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measuring
the
opinions, attitudes, and responses of 
2
respondents toward products and services,
or social or 
3
political issues, or both;

4
 (k) Electronic recordings, including but not limited to, a 
5
motion picture,
videotape, digital, or other visual or audio 
6
recording, made of a custodial
interrogation of an individual 
7
at a police station or other place of detention
by a law 
8
enforcement officer under Section 5-401.5 of the Juvenile Court 
9
Act of
1987 or Section 103-2.1 of the Code of Criminal 
10
Procedure of 1963;
11
 (l) Recording the interview or statement of any person when 
12
the person
knows that the interview is being conducted by a law 
13
enforcement officer or
prosecutor and the interview takes place 
14
at a police station that is currently
participating in the 
15
Custodial Interview Pilot Program established under the

16
Illinois Criminal Justice Information Act;

17
 (m) An electronic recording, including but not limited to, 
18
a motion picture,
videotape, digital, or other visual or audio 
19
recording, made of the interior of a school bus while the 
20
school bus is being used in the transportation of students to 
21
and from school and school-sponsored activities, when the 
22
school board has adopted a policy authorizing such recording, 
23
notice of such recording policy is included in student 
24
handbooks and other documents including the policies of the 
25
school, notice of the policy regarding recording is provided to 
26
parents of students, and notice of such recording is clearly 
 


 






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1
posted on the door of and inside the school bus.

2
 Recordings made pursuant to this subsection (m) shall be 
3
confidential records and may only be used by school officials 
4
(or their designees) and law enforcement personnel for 
5
investigations, school disciplinary actions and hearings, 
6
proceedings under the Juvenile Court Act of 1987, and criminal 
7
prosecutions, related to incidents occurring in or around the 
8
school bus; 
9
 (n)
Recording or listening to an audio transmission from a 
10
microphone placed by a person under the authority of a law 
11
enforcement agency inside a bait car surveillance vehicle while 
12
simultaneously capturing a photographic or video image; and
13
 (o) The use of an eavesdropping camera or audio device 
14
during an ongoing hostage or barricade situation by a law 
15
enforcement officer or individual acting on behalf of a law 
16
enforcement officer when the use of such device is necessary to 
17
protect the safety of the general public, hostages, or law 
18
enforcement officers or anyone acting on their behalf; and .
19
 (p) Recording or listening with the aid of any device to 
20
incoming telephone calls of phone lines publicly listed or 
21
advertised as telephone answering services and utilized by 
22
business or professional organizations for such purposes. If 
23
such recordings contain information relevant to a criminal 
24
investigation, they must be turned over to local law 
25
enforcement authorities within 24 hours from the time of such 
26
recording or as soon as practicable and shall not be otherwise 
 


 






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disseminated. Failure on the part of the individual or business 
2
operating any such recording or listening device to comply with 
3
the requirements of this subsection shall eliminate any civil 
4
or criminal immunity conferred upon that individual or business 
5
by the operation of this Section.
6
(Source: P.A. 95-258, eff. 1-1-08; 95-352, eff. 8-23-07; 
7
95-463, eff. 6-1-08; 95-876, eff. 8-21-08; 96-425, eff. 
8
8-13-09; 96-547, eff. 1-1-10; 96-643, eff. 1-1-10; 96-670, eff. 
9
8-25-09; revised 10-9-09.)


10
 Section 99. Effective date. This Act takes effect upon 
11
becoming law.