093_SB0008eng

 
SB8 Engrossed                        LRB093 02900 RLC 02916 b

 1        AN ACT in relation to 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
 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;
23        (d)  Recording or listening with the aid of any device to
24    any emergency communication made  in  the  normal  course  of
25    operations  by  any  federal,  state or local law enforcement
26    agency  or  institutions  dealing  in   emergency   services,
27    including,  but not limited to, hospitals, clinics, ambulance
28    services,  fire  fighting  agencies,  any   public   utility,
29    emergency  repair facility, civilian defense establishment or
30    military installation;
31        (e)  Recording the proceedings of any meeting required to
 
SB8 Engrossed               -2-      LRB093 02900 RLC 02916 b
 1    be open by the Open Meetings Act, as amended;
 2        (f)  Recording or listening with the aid of any device to
 3    incoming telephone calls of phone lines  publicly  listed  or
 4    advertised   as   consumer  "hotlines"  by  manufacturers  or
 5    retailers of food and drug products.  Such recordings must be
 6    destroyed, erased or turned over  to  local  law  enforcement
 7    authorities  within  24 hours from the time of such recording
 8    and shall not be otherwise disseminated.  Failure on the part
 9    of the individual or business operating any such recording or
10    listening device to comply  with  the  requirements  of  this
11    subsection  shall  eliminate  any  civil or criminal immunity
12    conferred upon that individual or business by  the  operation
13    of this Section;
14        (g)  With  prior  notification to the State's Attorney of
15    the county in which it is to occur,  recording  or  listening
16    with  the  aid  of any device to any conversation where a law
17    enforcement officer, or any person acting at the direction of
18    law enforcement, is a  party  to  the  conversation  and  has
19    consented   to   it   being  intercepted  or  recorded  under
20    circumstances where the use of the device  is  necessary  for
21    the  protection  of the law enforcement officer or any person
22    acting at the direction of law enforcement, in the course  of
23    an  investigation of a forcible felony, a felony violation of
24    the Illinois Controlled Substances Act, a felony violation of
25    the Cannabis Control Act,  or  any  "streetgang  related"  or
26    "gang-related"  felony  as  those  terms  are  defined in the
27    Illinois Streetgang Terrorism  Omnibus  Prevention  Act.  Any
28    recording or evidence derived as the result of this exemption
29    shall  be  inadmissible in any proceeding, criminal, civil or
30    administrative, except (i) where a party to the  conversation
31    suffers   great  bodily  injury  or  is  killed  during  such
32    conversation, or (ii) when used as direct  impeachment  of  a
33    witness  concerning  matters contained in the interception or
34    recording.  The Director of the Department  of  State  Police
 
SB8 Engrossed               -3-      LRB093 02900 RLC 02916 b
 1    shall  issue  regulations as are necessary concerning the use
 2    of  devices,  retention  of  tape  recordings,  and   reports
 3    regarding their use;
 4        (g-5)  With  approval  of  the  State's  Attorney  of the
 5    county in which it is to occur, recording or  listening  with
 6    the  aid  of  any  device  to  any  conversation  where a law
 7    enforcement officer, or any person acting at the direction of
 8    law enforcement, is a  party  to  the  conversation  and  has
 9    consented  to  it being intercepted or recorded in the course
10    of an investigation of any offense defined in Article 29D  of
11    this  Code.  In  all  such cases, an application for an order
12    approving the previous or continuing use of an  eavesdropping
13    device  must  be  made within 48 hours of the commencement of
14    such use.  In the absence of  such  an  order,  or  upon  its
15    denial,  any  continuing use shall immediately terminate. The
16    Director of State Police shall issue rules as  are  necessary
17    concerning  the use of devices, retention of tape recordings,
18    and reports regarding their use.
19        Any recording or evidence  obtained  or  derived  in  the
20    course  of an investigation of any offense defined in Article
21    29D of this Code shall, upon motion of the  State's  Attorney
22    or Attorney General prosecuting any violation of Article 29D,
23    be  reviewed  in camera with notice to all parties present by
24    the court presiding over the criminal case, and, if ruled  by
25    the  court  to be relevant and otherwise admissible, it shall
26    be admissible at the trial of the criminal case.
27        This subsection (g-5) is inoperative on and after January
28    1, 2005. No conversations recorded or monitored  pursuant  to
29    this subsection (g-5) shall be inadmissable in a court of law
30    by  virtue  of the repeal of this subsection (g-5) on January
31    1, 2005;.
32        (h)  Recordings  made   simultaneously   with   a   video
33    recording  of  an  oral conversation between a peace officer,
34    who has identified his or her office, and  a  person  stopped
 
SB8 Engrossed               -4-      LRB093 02900 RLC 02916 b
 1    for an investigation of an offense under the Illinois Vehicle
 2    Code;
 3        (i)  Recording  of  a  conversation  made  by  or  at the
 4    request of a person, not a law enforcement officer  or  agent
 5    of  a  law  enforcement  officer,  who  is  a  party  to  the
 6    conversation,  under  reasonable suspicion that another party
 7    to the conversation is committing, is about to commit, or has
 8    committed a criminal offense against the person or  a  member
 9    of  his  or  her  immediate household, and there is reason to
10    believe that evidence of the criminal offense may be obtained
11    by the recording; and
12        (j)  The use of a telephone monitoring device  by  either
13    (1)  a  corporation  or  other  business  entity  engaged  in
14    marketing  or  opinion research or (2) a corporation or other
15    business entity engaged in telephone solicitation, as defined
16    in this subsection, to record or  listen  to  oral  telephone
17    solicitation  conversations  or marketing or opinion research
18    conversations by an employee  of  the  corporation  or  other
19    business entity when:
20             (i)  the  monitoring  is  used  for  the  purpose of
21        service quality control of marketing or opinion  research
22        or  telephone  solicitation, the education or training of
23        employees or contractors engaged in marketing or  opinion
24        research  or telephone solicitation, or internal research
25        related to marketing or  opinion  research  or  telephone
26        solicitation; and
27             (ii)  the  monitoring is used with the consent of at
28        least one person who is an active party to the  marketing
29        or    opinion    research   conversation   or   telephone
30        solicitation conversation being monitored.
31        No communication or conversation or any part, portion, or
32    aspect of the communication or conversation  made,  acquired,
33    or  obtained,  directly  or  indirectly, under this exemption
34    (j), may be, directly or indirectly,  furnished  to  any  law
 
SB8 Engrossed               -5-      LRB093 02900 RLC 02916 b
 1    enforcement  officer,  agency, or official for any purpose or
 2    used in any inquiry or investigation, or  used,  directly  or
 3    indirectly,   in   any  administrative,  judicial,  or  other
 4    proceeding, or divulged to any third party.
 5        When recording or listening authorized by this subsection
 6    (j) on telephone lines used for marketing or opinion research
 7    or telephone solicitation purposes results  in  recording  or
 8    listening to a conversation that does not relate to marketing
 9    or  opinion  research  or  telephone solicitation; the person
10    recording or listening shall,  immediately  upon  determining
11    that the conversation does not relate to marketing or opinion
12    research  or  telephone solicitation, terminate the recording
13    or listening and destroy any such recording  as  soon  as  is
14    practicable.
15        Business  entities  that  use  a  telephone monitoring or
16    telephone recording system pursuant  to  this  exemption  (j)
17    shall  provide  current and prospective employees with notice
18    that the monitoring or recordings may occur during the course
19    of their employment.   The  notice  shall  include  prominent
20    signage notification within the workplace.
21        Business  entities  that  use  a  telephone monitoring or
22    telephone recording system pursuant  to  this  exemption  (j)
23    shall  provide  their  employees  or  agents  with  access to
24    personal-only telephone lines which may  be  pay  telephones,
25    that  are  not  subject  to telephone monitoring or telephone
26    recording.
27        For the  purposes  of  this  subsection  (j),  "telephone
28    solicitation"  means  a  communication  through  the use of a
29    telephone by live operators:
30             (i)  soliciting the sale of goods or services;
31             (ii)  receiving orders for  the  sale  of  goods  or
32        services;
33             (iii)  assisting in the use of goods or services; or
34             (iv)  engaging  in the solicitation, administration,
 
SB8 Engrossed               -6-      LRB093 02900 RLC 02916 b
 1        or collection of bank or retail credit accounts.
 2        For the purposes of this subsection  (j),  "marketing  or
 3    opinion  research"  means  a  marketing  or  opinion research
 4    interview conducted by a live telephone  interviewer  engaged
 5    by  a  corporation  or  other business entity whose principal
 6    business is the design, conduct, and analysis  of  polls  and
 7    surveys  measuring  the opinions, attitudes, and responses of
 8    respondents  toward  products  and  services,  or  social  or
 9    political issues, or both; and.
10        (k)  With approval of the State's Attorney of the  county
11    in  which it is to occur, recording or listening with the aid
12    of any device to any conversation  where  a  law  enforcement
13    officer,  or  any  person  acting  at  the direction of a law
14    enforcement officer, is a party to the conversation  and  has
15    consented  to  it being intercepted or recorded in the course
16    of an investigation of a felony  violation  of  the  Illinois
17    Controlled  Substances  Act  or  a  felony  violation  of the
18    Cannabis Control Act. In all such cases, an  application  for
19    an  order  approving  the  previous  use  of an eavesdropping
20    device must be made within 72 hours of  the  commencement  of
21    such  use.  In  the  absence  of  such  an order, or upon its
22    denial, any recording or evidence derived as  the  result  of
23    this  exemption  shall  be  inadmissible  in  any proceeding,
24    criminal, civil,  or  administrative,  except  when  used  as
25    direct  impeachment of a witness concerning matters contained
26    in the interception  or  recording.  The  Director  of  State
27    Police  shall issue rules as are necessary concerning the use
28    of  devices,  retention  of  tape  recordings,  and   reports
29    regarding their use.
30    (Source: P.A. 91-357, eff. 7-29-99; 92-854, eff. 12-5-02.)

31        Section   10.   The Code of Criminal Procedure of 1963 is
32    amended by adding Section 108A-12 as follows:
 
SB8 Engrossed               -7-      LRB093 02900 RLC 02916 b
 1        (725 ILCS 5/108A-12 new)
 2        Sec. 108A-12. Undercover narcotic investigation exception
 3    to procedures.
 4        (a) With prior notification to and verbal approval of the
 5    State's Attorney of the county in which the  conversation  is
 6    anticipated  to  occur  or  his or her designee, recording or
 7    listening with the  aid  of  an  eavesdropping  device  to  a
 8    conversation  in  which  a  law  enforcement  officer, or any
 9    person acting at the direction of a law enforcement  officer,
10    is a party to an undercover conversation and has consented to
11    the  conversation being intercepted or recorded in the course
12    of an investigation of a felony  violation  of  the  Illinois
13    Controlled  Substances  Act  or  a  felony  violation  of the
14    Cannabis Control Act. The  use  of  an  eavesdropping  device
15    under   this  Section  shall  be  deemed  necessary  for  the
16    protection of the law enforcement officer or person acting at
17    the direction of the law enforcement officer.
18        (b)  In all such cases, any recording or evidence derived
19    as the result of this exemption shall be inadmissible in  any
20    proceeding,  criminal,  civil,  or  administrative, unless an
21    application for an order approving the previous or continuing
22    use of an eavesdropping device is made within 72 hours of the
23    commencement of such use and the order is  approved.  In  the
24    absence  of  an  order  approving  use  of  the  device,  any
25    continuing  use  shall  immediately  terminate.  In  order to
26    approve such undercover use of an eavesdropping device during
27    an investigation  of  a  felony  violation  of  the  Illinois
28    Controlled  Substances  Act  or  a  felony  violation  of the
29    Cannabis Control Act, the judge  must  make  a  determination
30    that:  (1) a law enforcement officer, or any person acting at
31    the direction of a law enforcement officer has  consented  to
32    an  undercover  conversation concerning a felony violation of
33    the Illinois Controlled Substances Act or a felony  violation
34    of the Cannabis Control Act being intercepted or recorded and
 
SB8 Engrossed               -8-      LRB093 02900 RLC 02916 b
 1    (2) the judge would have granted an order had the information
 2    been  before  the court prior to the use of the eavesdropping
 3    device. The manner and form of the application for such order
 4    shall be determined by the Attorney General.
 5        (c)  In the event that an application for approval  under
 6    this  Section  is  denied  the  contents  of the conversation
 7    overheard  or  recorded  shall  be  treated  as  having  been
 8    obtained in violation of this Article.