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92nd General Assembly

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Public Act 92-0728

SB1646 Enrolled                                LRB9211249RCcd

    AN ACT in relation to 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 adding
Sections 16-18, 16-19, 16-20, and 16-21 as follows:

    (720 ILCS 5/16-18 new)
    Sec.  16-18.  Unlawful  communication and access devices;
definitions. As used in Sections  16-19,  16-20,  and  16-21,
unless the context otherwise indicates:
    "Communication  device"  means  any  type  of instrument,
device,  machine,  or   equipment   which   is   capable   of
transmitting,   acquiring,   decrypting,   or  receiving  any
telephonic, electronic, data, Internet access, audio,  video,
microwave,  or  radio transmissions, signals, communications,
or   services,   including    the    receipt,    acquisition,
transmission,  or  decryption  of  all  such  communications,
transmissions,  signals,  or  services provided by or through
any cable  television,  fiber  optic,  telephone,  satellite,
microwave,   radio,  Internet-based,  data  transmission,  or
wireless distribution network, system  or  facility;  or  any
part, accessory, or component thereof, including any computer
circuit,  security  module,  smart  card,  software, computer
chip, electronic mechanism or other component,  accessory  or
part   of  any  communication  device  which  is  capable  of
facilitating the  transmission,  decryption,  acquisition  or
reception of all such communications, transmissions, signals,
or services.
    "Communication   service"   means  any  service  lawfully
provided for a  charge  or  compensation  to  facilitate  the
lawful  origination,  transmission, emission, or reception of
signs,  signals,  data,  writings,  images,  and  sounds   or
intelligence  of  any nature by telephone, including cellular
telephones  or  a  wire,  wireless,  radio,  electromagnetic,
photo-electronic  or  photo-optical  system;  and  also   any
service  lawfully  provided  by  any  radio, telephone, cable
television, fiber optic, satellite, microwave, Internet-based
or  wireless  distribution  network,  system,   facility   or
technology,  including,  but  not  limited  to,  any  and all
electronic, data, video, audio, Internet access,  telephonic,
microwave  and  radio  communications, transmissions, signals
and services, and  any  such  communications,  transmissions,
signals and services lawfully provided directly or indirectly
by  or  through any of those networks, systems, facilities or
technologies.
    "Communication service provider" means: (1) any person or
entity providing any communication service, whether  directly
or  indirectly, as a reseller, including, but not limited to,
a cellular, paging or other wireless  communications  company
or  other  person  or  entity  which, for a fee, supplies the
facility, cell site, mobile  telephone  switching  office  or
other  equipment  or communication service; (2) any person or
entity owning or operating any cable television, fiber optic,
satellite,  telephone,  wireless,  microwave,   radio,   data
transmission  or  Internet-based distribution network, system
or facility; and (3)  any  person  or  entity  providing  any
communication  service  directly  or indirectly by or through
any such distribution system, network or facility.
    "Unlawful  communication  device"  means  any  electronic
serial  number,  mobile   identification   number,   personal
identification  number  or  any  communication device that is
capable of acquiring or facilitating  the  acquisition  of  a
communication  service without the express consent or express
authorization of the communication service provider, or  that
has been altered, modified, programmed or reprogrammed, alone
or  in conjunction with another communication device or other
equipment, to  so  acquire  or  facilitate  the  unauthorized
acquisition    of    a   communication   service.   "Unlawful
communication device" also means:
         (1)  any phone altered to obtain service without the
    express  consent  or   express   authorization   of   the
    communication    service    provider,    tumbler   phone,
    counterfeit   or   clone   phone,   tumbler    microchip,
    counterfeit   or  clone  microchip  or  other  instrument
    capable of disguising its  identity  or  location  or  of
    gaining  unauthorized  access  to a communications system
    operated by a communication service provider; and
         (2)  any communication device which is  capable  of,
    or  has  been  altered, designed, modified, programmed or
    reprogrammed,  alone  or  in  conjunction  with   another
    communication  device or devices, so as to be capable of,
    facilitating  the   disruption,   acquisition,   receipt,
    transmission  or  decryption  of  a communication service
    without the express consent or express  authorization  of
    the  communication  service  provider, including, but not
    limited to, any  device,  technology,  product,  service,
    equipment,   computer   software  or  component  or  part
    thereof,   primarily   distributed,    sold,    designed,
    assembled,     manufactured,     modified,    programmed,
    reprogrammed or used for the  purpose  of  providing  the
    unauthorized  receipt of, transmission of, disruption of,
    decryption  of,  access  to   or   acquisition   of   any
    communication   service  provided  by  any  communication
    service provider.
    "Manufacture or assembly  of  an  unlawful  communication
device"  means  to  make,  produce  or  assemble  an unlawful
communication  device  or  to  modify,  alter,   program   or
reprogram  a communication device to be capable of acquiring,
disrupting,   receiving,   transmitting,    decrypting,    or
facilitating    the    acquisition,    disruption,   receipt,
transmission  or  decryption  of,  a  communication   service
without  the  express consent or express authorization of the
communication service provider, or to knowingly assist others
in those activities.
    "Unlawful access device" means any  type  of  instrument,
device,  machine, equipment, technology, or software which is
primarily possessed, used, designed, assembled, manufactured,
sold, distributed or offered, promoted or advertised for  the
purpose  of defeating or circumventing any technology, device
or software, or any component or part thereof,  used  by  the
provider,  owner  or licensee of any communication service or
of any data, audio or  video  programs  or  transmissions  to
protect  any  such  communication,  audio  or video services,
programs   or   transmissions   from   unauthorized   access,
acquisition, receipt, decryption, disclosure,  communication,
transmission or re-transmission.
    "Manufacture  or  assembly  of an unlawful access device"
means to make, produce or assemble an unlawful access  device
or  to  modify,  alter, program or re-program any instrument,
device, machine, equipment or software so that it is  capable
of  defeating  or  circumventing  any  technology,  device or
software used  by  the  provider,  owner  or  licensee  of  a
communication service or of any data, audio or video programs
or  transmissions  to  protect  any such communication, data,
audio or  video  services,  programs  or  transmissions  from
unauthorized   access,   acquisition,   disclosure,  receipt,
decryption, communication, transmission or re-transmission.

    (720 ILCS 5/16-19 new)
    Sec. 16-19. Prohibited acts. A person commits an  offense
if he or she knowingly:
    (1)  obtains  or uses a communication service without the
authorization of, or compensation paid to, the  communication
service provider, or assists or instructs any other person in
doing  so  with  intent  to defraud the communication service
provider;
    (2)  possesses,    uses,     manufactures,     assembles,
distributes, leases, transfers, or sells, or offers, promotes
or  advertises  for  sale,  lease,  use,  or  distribution an
unlawful communication device:
         (A)  for  the   commission   of   a   theft   of   a
    communication  service  or to receive, disrupt, transmit,
    decrypt,  or  acquire,   or   facilitate   the   receipt,
    disruption,  transmission,  decryption or acquisition, of
    any communication service without the express consent  or
    express   authorization   of  the  communication  service
    provider; or
         (B)  to conceal or to assist another to conceal from
    any communication service provider  or  from  any  lawful
    authority the existence or place of origin or destination
    of any communication;
    (3)  modifies,   alters,   programs   or   reprograms   a
communication   device   for   the   purposes   described  in
subdivision (2)(A) or (2)(B);
    (4)  possesses, uses,  manufactures,  assembles,  leases,
distributes,  sells,  or  transfers,  or  offers, promotes or
advertises for sale, use or distribution, any unlawful access
device; or
    (5)  possesses, uses,  prepares,  distributes,  gives  or
otherwise  transfers  to  another  or  offers,  promotes,  or
advertises for sale, use or distribution any:
         (A)  plans  or instructions for making or assembling
    an  unlawful  communication  or  access   device,   under
    circumstances  evidencing  an intent to use or employ the
    unlawful communication or access device, or to allow  the
    same  to be used or employed, for a purpose prohibited by
    this Section, or knowing or having reason to believe that
    the plans or instructions are intended  to  be  used  for
    manufacturing or assembling the unlawful communication or
    access  device  for a purpose prohibited by this Section;
    or
         (B)  material, including  hardware,  cables,  tools,
    data,   computer   software   or   other  information  or
    equipment, knowing that the purchaser or a  third  person
    intends  to  use  the  material  in  the  manufacture  or
    assembly  of  an  unlawful communication or access device
    for a purpose prohibited by this Section.

    (720 ILCS 5/16-20 new)
    Sec. 16-20.  Criminal penalties.
    (a)  Except for violations of Section 16-19  as  provided
for  in  subsection  (b) or (c) of this Section, a person who
violates Section 16-19 is guilty of a Class A misdemeanor.
    (b)  An offense under Section 16-19 is a Class  4  felony
if:
         (1)  the  defendant  has  been  convicted previously
    under Section 16-19 or convicted of any similar crime  in
    this or any federal or other state jurisdiction; or
         (2)  the  violation  of  Section  16-19  involves at
    least 10, but not more than 50, unlawful communication or
    access devices.
    (c)  An offense under Section 16-19 is a Class  3  felony
if:
         (1)  the  defendant has been convicted previously on
    2 or more occasions for offenses under Section  16-19  or
    for  any  similar  crime  in this or any federal or other
    state jurisdiction; or
         (2)  the violation of Section  16-19  involves  more
    than 50 unlawful communication or access devices.
    (d)  For  purposes  of  grading  an  offense based upon a
prior conviction under Section 16-19 or for any similar crime
under subdivisions (b)(1) and (c)(1) of this Section, a prior
conviction  shall  consist  of  convictions   upon   separate
indictments or criminal complaints for offenses under Section
16-19  or  any  similar crime in this or any federal or other
state jurisdiction.
    (e)  As provided for in subdivisions (b)(1) and (c)(1) of
this Section, in grading an offense under Section 16-19 based
upon a prior conviction, the term "any similar  crime"  shall
include,  but  not be limited to, offenses involving theft of
service  or  fraud,  including  violations   of   the   Cable
Communications  Policy  Act  of  1984  (Public Law 98-549, 98
Stat. 2779).
    (f)  Separate offenses.  For  purposes  of  all  criminal
penalties  or  fines  established  for  violations of Section
16-19, the prohibited activity established in  Section  16-19
as it applies to each unlawful communication or access device
shall be deemed a separate offense.
    (g)     Fines.   For  purposes  of  imposing  fines  upon
conviction of a defendant for an offense under Section 16-19,
all fines shall be imposed in accordance with  Article  9  of
Chapter V of the Unified Code of Corrections.
    (h)  Restitution.   The  court  shall, in addition to any
other sentence authorized by law, sentence a person convicted
of violating Section 16-19 to make restitution in the  manner
provided  in  Article  5  of Chapter V of the Unified Code of
Corrections.
    (i)  Forfeiture  of  unlawful  communication  or   access
devices.  Upon conviction of a defendant under Section 16-19,
the court may, in addition to any other  sentence  authorized
by  law,  direct  that  the  defendant  forfeit  any unlawful
communication or access devices in the defendant's possession
or control which were involved in the violation for which the
defendant was convicted.
    (j)  Venue. An offense under Section 16-19 may be  deemed
to  have  been  committed  at  either  the  place  where  the
defendant manufactured or assembled an unlawful communication
or  access  device,  or  assisted  others in doing so, or the
place where the unlawful communication or access  device  was
sold  or  delivered  to a purchaser or recipient. It is not a
defense to a violation of Section 16-19 that some of the acts
constituting the offense occurred outside  of  the  State  of
Illinois.

    (720 ILCS 5/16-21 new)
    Sec. 16-21. Civil actions.
    (a)  Any person aggrieved by a violation of Section 16-19
may   bring   a  civil  action  in  any  court  of  competent
jurisdiction.
    (b)  The court may:
         (1)  grant  preliminary  and  final  injunctions  to
    prevent or restrain violations of Section 16-19 without a
    showing by the plaintiff of special damages,  irreparable
    harm or inadequacy of other legal remedies;
         (2)  at  any  time while an action is pending, order
    the impounding, on such terms as it deems reasonable,  of
    any  unlawful  communication  or access device that is in
    the custody or control of the violator and that the court
    has reasonable cause  to  believe  was  involved  in  the
    alleged violation of Section 16-19;
         (3)  award damages as described in subsection (c);
         (4)  in  its discretion, award reasonable attorney's
    fees and costs, including, but not limited to, costs  for
    investigation,  testing  and  expert  witness fees, to an
    aggrieved party who prevails; and
         (5)  as part of a final judgment or decree finding a
    violation  of   Section   16-19,   order   the   remedial
    modification or destruction of any unlawful communication
    or access device involved in the violation that is in the
    custody  or control of the violator or has been impounded
    under subdivision (2) of this subsection (b).
    (c)  Types of damages recoverable. Damages awarded  by  a
court  under  this Section shall be computed as either of the
following:
         (1)  Upon his or her election of such damages at any
    time before final judgment is  entered,  the  complaining
    party  may  recover the actual damages suffered by him or
    her as a result of the violation of Section 16-19 and any
    profits of the violator  that  are  attributable  to  the
    violation and are not taken into account in computing the
    actual  damages.  In  determining the violator's profits,
    the complaining party shall be required to prove only the
    violator's gross  revenue,  and  the  violator  shall  be
    required  to prove his or her deductible expenses and the
    elements of profit attributable to factors other than the
    violation; or
         (2)  Upon election by the complaining party  at  any
    time  before  final  judgment  is entered, that party may
    recover in lieu of actual damages an award  of  statutory
    damages  of  not less than $250 and not more than $10,000
    for each unlawful communication or access device involved
    in the action, with the amount of statutory damages to be
    determined by the court, as the court considers just.  In
    any  case,  if the court finds that any of the violations
    of  Section  16-19  were  committed  willfully  and   for
    purposes  of  commercial  advantage  or private financial
    gain, the court in its discretion may increase the  award
    of  statutory  damages  by  an  amount  of  not more than
    $50,000 for each unlawful communication or access  device
    involved in the action.
    (d)  For  purposes  of all civil remedies established for
violations  of  Section  16-19,   the   prohibited   activity
established   in   this  Section  applies  to  each  unlawful
communication or access device and shall be deemed a separate
violation.

    (720 ILCS 5/16-10 rep.)
    (720 ILCS 5/16-11 rep.)
    (720 ILCS 5/16-12 rep.)
    (720 ILCS 5/16-13 rep.)

    Section 10. The Criminal  Code  of  1961  is  amended  by
repealing Sections 16-10, 16-11, 16-12, and 16-13.
    Passed in the General Assembly May 22, 2002.
    Approved July 25, 2002.
    Effective January 01, 2003.

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