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92_SB1646eng SB1646 Engrossed LRB9211249RCcd 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 adding 5 Sections 16-18, 16-19, 16-20, and 16-21 as follows: 6 (720 ILCS 5/16-18 new) 7 Sec. 16-18. Unlawful communication and access devices; 8 definitions. As used in Sections 16-19, 16-20, and 16-21, 9 unless the context otherwise indicates: 10 "Communication device" means any type of instrument, 11 device, machine, or equipment which is capable of 12 transmitting, acquiring, decrypting, or receiving any 13 telephonic, electronic, data, Internet access, audio, video, 14 microwave, or radio transmissions, signals, communications, 15 or services, including the receipt, acquisition, 16 transmission, or decryption of all such communications, 17 transmissions, signals, or services provided by or through 18 any cable television, fiber optic, telephone, satellite, 19 microwave, radio, Internet-based, data transmission, or 20 wireless distribution network, system or facility; or any 21 part, accessory, or component thereof, including any computer 22 circuit, security module, smart card, software, computer 23 chip, electronic mechanism or other component, accessory or 24 part of any communication device which is capable of 25 facilitating the transmission, decryption, acquisition or 26 reception of all such communications, transmissions, signals, 27 or services. 28 "Communication service" means any service lawfully 29 provided for a charge or compensation to facilitate the 30 lawful origination, transmission, emission, or reception of 31 signs, signals, data, writings, images, and sounds or SB1646 Engrossed -2- LRB9211249RCcd 1 intelligence of any nature by telephone, including cellular 2 telephones or a wire, wireless, radio, electromagnetic, 3 photo-electronic or photo-optical system; and also any 4 service lawfully provided by any radio, telephone, cable 5 television, fiber optic, satellite, microwave, Internet-based 6 or wireless distribution network, system, facility or 7 technology, including, but not limited to, any and all 8 electronic, data, video, audio, Internet access, telephonic, 9 microwave and radio communications, transmissions, signals 10 and services, and any such communications, transmissions, 11 signals and services lawfully provided directly or indirectly 12 by or through any of those networks, systems, facilities or 13 technologies. 14 "Communication service provider" means: (1) any person or 15 entity providing any communication service, whether directly 16 or indirectly, as a reseller, including, but not limited to, 17 a cellular, paging or other wireless communications company 18 or other person or entity which, for a fee, supplies the 19 facility, cell site, mobile telephone switching office or 20 other equipment or communication service; (2) any person or 21 entity owning or operating any cable television, fiber optic, 22 satellite, telephone, wireless, microwave, radio, data 23 transmission or Internet-based distribution network, system 24 or facility; and (3) any person or entity providing any 25 communication service directly or indirectly by or through 26 any such distribution system, network or facility. 27 "Unlawful communication device" means any electronic 28 serial number, mobile identification number, personal 29 identification number or any communication device that is 30 capable of acquiring or facilitating the acquisition of a 31 communication service without the express consent or express 32 authorization of the communication service provider, or that 33 has been altered, modified, programmed or reprogrammed, alone 34 or in conjunction with another communication device or other SB1646 Engrossed -3- LRB9211249RCcd 1 equipment, to so acquire or facilitate the unauthorized 2 acquisition of a communication service. "Unlawful 3 communication device" also means: 4 (1) any phone altered to obtain service without the 5 express consent or express authorization of the 6 communication service provider, tumbler phone, 7 counterfeit or clone phone, tumbler microchip, 8 counterfeit or clone microchip or other instrument 9 capable of disguising its identity or location or of 10 gaining unauthorized access to a communications system 11 operated by a communication service provider; and 12 (2) any communication device which is capable of, 13 or has been altered, designed, modified, programmed or 14 reprogrammed, alone or in conjunction with another 15 communication device or devices, so as to be capable of, 16 facilitating the disruption, acquisition, receipt, 17 transmission or decryption of a communication service 18 without the express consent or express authorization of 19 the communication service provider, including, but not 20 limited to, any device, technology, product, service, 21 equipment, computer software or component or part 22 thereof, primarily distributed, sold, designed, 23 assembled, manufactured, modified, programmed, 24 reprogrammed or used for the purpose of providing the 25 unauthorized receipt of, transmission of, disruption of, 26 decryption of, access to or acquisition of any 27 communication service provided by any communication 28 service provider. 29 "Manufacture or assembly of an unlawful communication 30 device" means to make, produce or assemble an unlawful 31 communication device or to modify, alter, program or 32 reprogram a communication device to be capable of acquiring, 33 disrupting, receiving, transmitting, decrypting, or 34 facilitating the acquisition, disruption, receipt, SB1646 Engrossed -4- LRB9211249RCcd 1 transmission or decryption of, a communication service 2 without the express consent or express authorization of the 3 communication service provider, or to knowingly assist others 4 in those activities. 5 "Unlawful access device" means any type of instrument, 6 device, machine, equipment, technology, or software which is 7 primarily possessed, used, designed, assembled, manufactured, 8 sold, distributed or offered, promoted or advertised for the 9 purpose of defeating or circumventing any technology, device 10 or software, or any component or part thereof, used by the 11 provider, owner or licensee of any communication service or 12 of any data, audio or video programs or transmissions to 13 protect any such communication, audio or video services, 14 programs or transmissions from unauthorized access, 15 acquisition, receipt, decryption, disclosure, communication, 16 transmission or re-transmission. 17 "Manufacture or assembly of an unlawful access device" 18 means to make, produce or assemble an unlawful access device 19 or to modify, alter, program or re-program any instrument, 20 device, machine, equipment or software so that it is capable 21 of defeating or circumventing any technology, device or 22 software used by the provider, owner or licensee of a 23 communication service or of any data, audio or video programs 24 or transmissions to protect any such communication, data, 25 audio or video services, programs or transmissions from 26 unauthorized access, acquisition, disclosure, receipt, 27 decryption, communication, transmission or re-transmission. 28 (720 ILCS 5/16-19 new) 29 Sec. 16-19. Prohibited acts. A person commits an offense 30 if he or she knowingly: 31 (1) obtains or uses a communication service without the 32 authorization of, or compensation paid to, the communication 33 service provider, or assists or instructs any other person in SB1646 Engrossed -5- LRB9211249RCcd 1 doing so with intent to defraud the communication service 2 provider; 3 (2) possesses, uses, manufactures, assembles, 4 distributes, leases, transfers, or sells, or offers, promotes 5 or advertises for sale, lease, use, or distribution an 6 unlawful communication device: 7 (A) for the commission of a theft of a 8 communication service or to receive, disrupt, transmit, 9 decrypt, or acquire, or facilitate the receipt, 10 disruption, transmission, decryption or acquisition, of 11 any communication service without the express consent or 12 express authorization of the communication service 13 provider; or 14 (B) to conceal or to assist another to conceal from 15 any communication service provider or from any lawful 16 authority the existence or place of origin or destination 17 of any communication; 18 (3) modifies, alters, programs or reprograms a 19 communication device for the purposes described in 20 subdivision (2)(A) or (2)(B); 21 (4) possesses, uses, manufactures, assembles, leases, 22 distributes, sells, or transfers, or offers, promotes or 23 advertises for sale, use or distribution, any unlawful access 24 device; or 25 (5) possesses, uses, prepares, distributes, gives or 26 otherwise transfers to another or offers, promotes, or 27 advertises for sale, use or distribution any: 28 (A) plans or instructions for making or assembling 29 an unlawful communication or access device, under 30 circumstances evidencing an intent to use or employ the 31 unlawful communication or access device, or to allow the 32 same to be used or employed, for a purpose prohibited by 33 this Section, or knowing or having reason to believe that 34 the plans or instructions are intended to be used for SB1646 Engrossed -6- LRB9211249RCcd 1 manufacturing or assembling the unlawful communication or 2 access device for a purpose prohibited by this Section; 3 or 4 (B) material, including hardware, cables, tools, 5 data, computer software or other information or 6 equipment, knowing that the purchaser or a third person 7 intends to use the material in the manufacture or 8 assembly of an unlawful communication or access device 9 for a purpose prohibited by this Section. 10 (720 ILCS 5/16-20 new) 11 Sec. 16-20. Criminal penalties. 12 (a) Except for violations of Section 16-19 as provided 13 for in subsection (b) or (c) of this Section, a person who 14 violates Section 16-19 is guilty of a Class A misdemeanor. 15 (b) An offense under Section 16-19 is a Class 4 felony 16 if: 17 (1) the defendant has been convicted previously 18 under Section 16-19 or convicted of any similar crime in 19 this or any federal or other state jurisdiction; or 20 (2) the violation of Section 16-19 involves at 21 least 10, but not more than 50, unlawful communication or 22 access devices. 23 (c) An offense under Section 16-19 is a Class 3 felony 24 if: 25 (1) the defendant has been convicted previously on 26 2 or more occasions for offenses under Section 16-19 or 27 for any similar crime in this or any federal or other 28 state jurisdiction; or 29 (2) the violation of Section 16-19 involves more 30 than 50 unlawful communication or access devices. 31 (d) For purposes of grading an offense based upon a 32 prior conviction under Section 16-19 or for any similar crime 33 under subdivisions (b)(1) and (c)(1) of this Section, a prior SB1646 Engrossed -7- LRB9211249RCcd 1 conviction shall consist of convictions upon separate 2 indictments or criminal complaints for offenses under Section 3 16-19 or any similar crime in this or any federal or other 4 state jurisdiction. 5 (e) As provided for in subdivisions (b)(1) and (c)(1) of 6 this Section, in grading an offense under Section 16-19 based 7 upon a prior conviction, the term "any similar crime" shall 8 include, but not be limited to, offenses involving theft of 9 service or fraud, including violations of the Cable 10 Communications Policy Act of 1984 (Public Law 98-549, 98 11 Stat. 2779). 12 (f) Separate offenses. For purposes of all criminal 13 penalties or fines established for violations of Section 14 16-19, the prohibited activity established in Section 16-19 15 as it applies to each unlawful communication or access device 16 shall be deemed a separate offense. 17 (g) Fines. For purposes of imposing fines upon 18 conviction of a defendant for an offense under Section 16-19, 19 all fines shall be imposed in accordance with Article 9 of 20 Chapter V of the Unified Code of Corrections. 21 (h) Restitution. The court shall, in addition to any 22 other sentence authorized by law, sentence a person convicted 23 of violating Section 16-19 to make restitution in the manner 24 provided in Article 5 of Chapter V of the Unified Code of 25 Corrections. 26 (i) Forfeiture of unlawful communication or access 27 devices. Upon conviction of a defendant under Section 16-19, 28 the court may, in addition to any other sentence authorized 29 by law, direct that the defendant forfeit any unlawful 30 communication or access devices in the defendant's possession 31 or control which were involved in the violation for which the 32 defendant was convicted. 33 (j) Venue. An offense under Section 16-19 may be deemed 34 to have been committed at either the place where the SB1646 Engrossed -8- LRB9211249RCcd 1 defendant manufactured or assembled an unlawful communication 2 or access device, or assisted others in doing so, or the 3 place where the unlawful communication or access device was 4 sold or delivered to a purchaser or recipient. It is not a 5 defense to a violation of Section 16-19 that some of the acts 6 constituting the offense occurred outside of the State of 7 Illinois. 8 (720 ILCS 5/16-21 new) 9 Sec. 16-21. Civil actions. 10 (a) Any person aggrieved by a violation of Section 16-19 11 may bring a civil action in any court of competent 12 jurisdiction. 13 (b) The court may: 14 (1) grant preliminary and final injunctions to 15 prevent or restrain violations of Section 16-19 without a 16 showing by the plaintiff of special damages, irreparable 17 harm or inadequacy of other legal remedies; 18 (2) at any time while an action is pending, order 19 the impounding, on such terms as it deems reasonable, of 20 any unlawful communication or access device that is in 21 the custody or control of the violator and that the court 22 has reasonable cause to believe was involved in the 23 alleged violation of Section 16-19; 24 (3) award damages as described in subsection (c); 25 (4) in its discretion, award reasonable attorney's 26 fees and costs, including, but not limited to, costs for 27 investigation, testing and expert witness fees, to an 28 aggrieved party who prevails; and 29 (5) as part of a final judgment or decree finding a 30 violation of Section 16-19, order the remedial 31 modification or destruction of any unlawful communication 32 or access device involved in the violation that is in the 33 custody or control of the violator or has been impounded SB1646 Engrossed -9- LRB9211249RCcd 1 under subdivision (2) of this subsection (b). 2 (c) Types of damages recoverable. Damages awarded by a 3 court under this Section shall be computed as either of the 4 following: 5 (1) Upon his or her election of such damages at any 6 time before final judgment is entered, the complaining 7 party may recover the actual damages suffered by him or 8 her as a result of the violation of Section 16-19 and any 9 profits of the violator that are attributable to the 10 violation and are not taken into account in computing the 11 actual damages. In determining the violator's profits, 12 the complaining party shall be required to prove only the 13 violator's gross revenue, and the violator shall be 14 required to prove his or her deductible expenses and the 15 elements of profit attributable to factors other than the 16 violation; or 17 (2) Upon election by the complaining party at any 18 time before final judgment is entered, that party may 19 recover in lieu of actual damages an award of statutory 20 damages of not less than $250 and not more than $10,000 21 for each unlawful communication or access device involved 22 in the action, with the amount of statutory damages to be 23 determined by the court, as the court considers just. In 24 any case, if the court finds that any of the violations 25 of Section 16-19 were committed willfully and for 26 purposes of commercial advantage or private financial 27 gain, the court in its discretion may increase the award 28 of statutory damages by an amount of not more than 29 $50,000 for each unlawful communication or access device 30 involved in the action. 31 (d) For purposes of all civil remedies established for 32 violations of Section 16-19, the prohibited activity 33 established in this Section applies to each unlawful 34 communication or access device and shall be deemed a separate SB1646 Engrossed -10- LRB9211249RCcd 1 violation. 2 (720 ILCS 5/16-10 rep.) 3 (720 ILCS 5/16-11 rep.) 4 (720 ILCS 5/16-12 rep.) 5 (720 ILCS 5/16-13 rep.) 6 Section 10. The Criminal Code of 1961 is amended by 7 repealing Sections 16-10, 16-11, 16-12, and 16-13.