093_SB0008sam001

 










                                     LRB093 02900 RLC 14445 a

 1                     AMENDMENT TO SENATE BILL 8

 2        AMENDMENT NO.     .  Amend Senate  Bill  8  by  replacing
 3    everything after the enacting clause with the following:

 4        "Section   5.   The  Criminal  Code of 1961 is amended by
 5    changing 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
 8    be 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
13    their employment in the operation, maintenance or  repair  of
14    the  equipment  of  such common carrier by wire so long as no
15    information obtained thereby  is  used  or  divulged  by  the
16    hearer;
17        (c)  Any  broadcast  by  radio,  television  or otherwise
18    whether it be a broadcast or  recorded  for  the  purpose  of
19    later  broadcasts  of  any  function  where  the public is in
20    attendance and the conversations are overheard incidental  to
21    the  main  purpose  for  which such broadcasts are then being
22    made;
 
                            -2-      LRB093 02900 RLC 14445 a
 1        (d)  Recording or listening with the aid of any device to
 2    any emergency communication made  in  the  normal  course  of
 3    operations  by  any  federal,  state or local law enforcement
 4    agency  or  institutions  dealing  in   emergency   services,
 5    including,  but not limited to, hospitals, clinics, ambulance
 6    services,  fire  fighting  agencies,  any   public   utility,
 7    emergency  repair facility, civilian defense establishment or
 8    military installation;
 9        (e)  Recording the proceedings of any meeting required to
10    be open by the Open Meetings Act, as amended;
11        (f)  Recording or listening with the aid of any device to
12    incoming telephone calls of phone lines  publicly  listed  or
13    advertised   as   consumer  "hotlines"  by  manufacturers  or
14    retailers of food and drug products.  Such recordings must be
15    destroyed, erased or turned over  to  local  law  enforcement
16    authorities  within  24 hours from the time of such recording
17    and shall not be otherwise disseminated.  Failure on the part
18    of the individual or business operating any such recording or
19    listening device to comply  with  the  requirements  of  this
20    subsection  shall  eliminate  any  civil or criminal immunity
21    conferred upon that individual or business by  the  operation
22    of this Section;
23        (g)  With  prior  notification to the State's Attorney of
24    the county in which it is to occur,  recording  or  listening
25    with  the  aid  of any device to any conversation where a law
26    enforcement officer, or any person acting at the direction of
27    law enforcement, is a  party  to  the  conversation  and  has
28    consented   to   it   being  intercepted  or  recorded  under
29    circumstances where the use of the device  is  necessary  for
30    the  protection  of the law enforcement officer or any person
31    acting at the direction of law enforcement, in the course  of
32    an  investigation of a forcible felony, a felony violation of
33    the Illinois Controlled Substances Act, a felony violation of
34    the Cannabis Control Act,  or  any  "streetgang  related"  or
 
                            -3-      LRB093 02900 RLC 14445 a
 1    "gang-related"  felony  as  those  terms  are  defined in the
 2    Illinois Streetgang Terrorism  Omnibus  Prevention  Act.  Any
 3    recording or evidence derived as the result of this exemption
 4    shall  be  inadmissible in any proceeding, criminal, civil or
 5    administrative, except (i) where a party to the  conversation
 6    suffers   great  bodily  injury  or  is  killed  during  such
 7    conversation, or (ii) when used as direct  impeachment  of  a
 8    witness  concerning  matters contained in the interception or
 9    recording.  The Director of the Department  of  State  Police
10    shall  issue  regulations as are necessary concerning the use
11    of  devices,  retention  of  tape  recordings,  and   reports
12    regarding their use;
13        (g-5)  With  approval  of  the  State's  Attorney  of the
14    county in which it is to occur, recording or  listening  with
15    the  aid  of  any  device  to  any  conversation  where a law
16    enforcement officer, or any person acting at the direction of
17    law enforcement, is a  party  to  the  conversation  and  has
18    consented  to  it being intercepted or recorded in the course
19    of an investigation of any offense defined in Article 29D  of
20    this  Code.  In  all  such cases, an application for an order
21    approving the previous or continuing use of an  eavesdropping
22    device  must  be  made within 48 hours of the commencement of
23    such use.  In the absence of  such  an  order,  or  upon  its
24    denial,  any  continuing use shall immediately terminate. The
25    Director of State Police shall issue rules as  are  necessary
26    concerning  the use of devices, retention of tape recordings,
27    and reports regarding their use.
28        Any recording or evidence  obtained  or  derived  in  the
29    course  of an investigation of any offense defined in Article
30    29D of this Code shall, upon motion of the  State's  Attorney
31    or Attorney General prosecuting any violation of Article 29D,
32    be  reviewed  in camera with notice to all parties present by
33    the court presiding over the criminal case, and, if ruled  by
34    the  court  to be relevant and otherwise admissible, it shall
 
                            -4-      LRB093 02900 RLC 14445 a
 1    be admissible at the trial of the criminal case.
 2        This subsection (g-5) is inoperative on and after January
 3    1, 2005. No conversations recorded or monitored  pursuant  to
 4    this subsection (g-5) shall be inadmissable in a court of law
 5    by  virtue  of the repeal of this subsection (g-5) on January
 6    1, 2005;.
 7        (h)  Recordings  made   simultaneously   with   a   video
 8    recording  of  an  oral conversation between a peace officer,
 9    who has identified his or her office, and  a  person  stopped
10    for an investigation of an offense under the Illinois Vehicle
11    Code;
12        (i)  Recording  of  a  conversation  made  by  or  at the
13    request of a person, not a law enforcement officer  or  agent
14    of  a  law  enforcement  officer,  who  is  a  party  to  the
15    conversation,  under  reasonable suspicion that another party
16    to the conversation is committing, is about to commit, or has
17    committed a criminal offense against the person or  a  member
18    of  his  or  her  immediate household, and there is reason to
19    believe that evidence of the criminal offense may be obtained
20    by the recording; and
21        (j)  The use of a telephone monitoring device  by  either
22    (1)  a  corporation  or  other  business  entity  engaged  in
23    marketing  or  opinion research or (2) a corporation or other
24    business entity engaged in telephone solicitation, as defined
25    in this subsection, to record or  listen  to  oral  telephone
26    solicitation  conversations  or marketing or opinion research
27    conversations by an employee  of  the  corporation  or  other
28    business entity when:
29             (i)  the  monitoring  is  used  for  the  purpose of
30        service quality control of marketing or opinion  research
31        or  telephone  solicitation, the education or training of
32        employees or contractors engaged in marketing or  opinion
33        research  or telephone solicitation, or internal research
34        related to marketing or  opinion  research  or  telephone
 
                            -5-      LRB093 02900 RLC 14445 a
 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
 4        or    opinion    research   conversation   or   telephone
 5        solicitation conversation being monitored.
 6        No communication or conversation or any part, portion, or
 7    aspect of the communication or conversation  made,  acquired,
 8    or  obtained,  directly  or  indirectly, under this exemption
 9    (j), may be, directly or indirectly,  furnished  to  any  law
10    enforcement  officer,  agency, or official for any purpose or
11    used in any inquiry or investigation, or  used,  directly  or
12    indirectly,   in   any  administrative,  judicial,  or  other
13    proceeding, or divulged 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
22    or 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)
26    shall  provide  current and prospective employees with notice
27    that the monitoring or recordings may occur during the course
28    of their employment.   The  notice  shall  include  prominent
29    signage notification within the workplace.
30        Business  entities  that  use  a  telephone monitoring or
31    telephone recording system pursuant  to  this  exemption  (j)
32    shall  provide  their  employees  or  agents  with  access to
33    personal-only telephone lines which may  be  pay  telephones,
34    that  are  not  subject  to telephone monitoring or telephone
 
                            -6-      LRB093 02900 RLC 14445 a
 1    recording.
 2        For the  purposes  of  this  subsection  (j),  "telephone
 3    solicitation"  means  a  communication  through  the use of a
 4    telephone by live operators:
 5             (i)  soliciting the sale of goods or services;
 6             (ii)  receiving orders for  the  sale  of  goods  or
 7        services;
 8             (iii)  assisting in the use of goods or services; or
 9             (iv)  engaging  in the solicitation, administration,
10        or collection of bank or retail credit accounts.
11        For the purposes of this subsection  (j),  "marketing  or
12    opinion  research"  means  a  marketing  or  opinion research
13    interview conducted by a live telephone  interviewer  engaged
14    by  a  corporation  or  other business entity whose principal
15    business is the design, conduct, and analysis  of  polls  and
16    surveys  measuring  the opinions, attitudes, and responses of
17    respondents  toward  products  and  services,  or  social  or
18    political issues, or both; and.
19        (k)  With approval of the State' Attorney of  the  county
20    in  which it is to occur, recording or listening with the aid
21    of any device to any conversation  where  a  law  enforcement
22    officer,  or  any  person  acting  at  the  direction  of law
23    enforcement officer, is a party to the conversation  and  has
24    consented  to  it being intercepted or recorded in the course
25    of an investigation of a felony  violation  of  the  Illinois
26    Controlled  Substances  Act  or  a  felony  violation  of the
27    Cannabis Control Act. In all such cases, an  application  for
28    an  order  approving  the  previous  use  of an eavesdropping
29    device must be made within 72 hours of  the  commencement  of
30    such  use.  In  the  absence  of  such  an order, or upon its
31    denial, any recording or evidence derived as  the  result  of
32    this  exemption  shall  be  inadmissible  in  any proceeding,
33    criminal, civil,  or  administrative,  except  when  used  as
34    direct  impeachment of a witness concerning matters contained
 
                            -7-      LRB093 02900 RLC 14445 a
 1    in the interception  or  recording.  The  Director  of  State
 2    Police  shall issue rules as are necessary concerning the use
 3    of  devices,  retention  of  tape  recordings,  and   reports
 4    regarding their use.
 5    (Source: P.A. 91-357, eff. 7-29-99; 92-854, eff. 12-5-02.)

 6        Section   10.   The Code of Criminal Procedure of 1963 is
 7    amended by adding Section 108A-12 as follows:

 8        (725 ILCS 5/108A-12 new)
 9        Sec. 108A-12. Undercover narcotic investigation exception
10    to procedures.
11        (a) With prior notification to and verbal approval of the
12    State's Attorney of the county in which the  conversation  is
13    anticipated  to  occur  or  his or her designee, recording or
14    listening with the  aid  of  an  eavesdropping  device  to  a
15    conversation  in  which  a  law  enforcement  officer, or any
16    person acting at the direction of a law enforcement  officer,
17    is a party to an undercover conversation and has consented to
18    the  conversation being intercepted or recorded in the course
19    of an investigation of a felony  violation  of  the  Illinois
20    Controlled  Substances  Act  or  a  felony  violation  of the
21    Cannabis Control Act. The  use  of  an  eavesdropping  device
22    under   this  Section  shall  be  deemed  necessary  for  the
23    protection of the law enforcement officer or person acting at
24    the direction of the law enforcement officer.
25        (b)  In all such cases, any recording or evidence derived
26    as the result of this exemption shall be inadmissible in  any
27    proceeding,  criminal,  civil,  or  administrative, unless an
28    application for an order approving the previous or continuing
29    use of an eavesdropping device is made within 72 hours of the
30    commencement of such use and the order is  approved.  In  the
31    absence  of  an  order  approving  use  of  the  device,  any
32    continuing  use  shall  immediately  terminate.  In  order to
 
                            -8-      LRB093 02900 RLC 14445 a
 1    approve such undercover use of an eavesdropping device during
 2    an investigation  of  a  felony  violation  of  the  Illinois
 3    Controlled  Substances  Act  or  a  felony  violation  of the
 4    Cannabis Control Act, the judge  must  make  a  determination
 5    that:  (1) a law enforcement officer, or any person acting at
 6    the direction of a law enforcement officer has  consented  to
 7    an  undercover  conversation concerning a felony violation of
 8    the Illinois Controlled Substances Act or a felony  violation
 9    of the Cannabis Control Act being intercepted or recorded and
10    (2) the judge would have granted an order had the information
11    been  before  the court prior to the use of the eavesdropping
12    device. The manner and form of the application for such order
13    shall be determined by the Attorney General.
14        (c)  In the event that an application for approval  under
15    this  Section  is  denied  the  contents  of the conversation
16    overheard  or  recorded  shall  be  treated  as  having  been
17    obtained in violation of this Article.".