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| Public Act 103-0183
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| HB3289 Enrolled | LRB103 29877 RLC 56287 b |
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AN ACT concerning criminal law.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Criminal Code of 2012 is amended by |
changing Section 12-7.5 as follows:
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(720 ILCS 5/12-7.5)
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Sec. 12-7.5. Cyberstalking.
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(a) A person commits cyberstalking when he or she engages |
in a course of conduct using electronic communication directed |
at a specific person, and he or she knows or should know that |
would cause a reasonable person to: |
(1) fear for his or her safety or the safety of a third |
person; or |
(2) suffer other emotional distress. |
(a-3) A person commits cyberstalking when he or she, |
knowingly and without
lawful justification, on at least 2 |
separate occasions, harasses another person
through the use of |
electronic communication and:
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(1) at any time transmits a threat of immediate or |
future bodily harm,
sexual assault, confinement, or |
restraint and the threat is directed towards
that person |
or a family member of that person; or
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(2) places that person or a family member of that |
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person in reasonable
apprehension of immediate or future |
bodily harm, sexual assault, confinement,
or restraint; or
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(3) at any time knowingly solicits the commission of |
an act by any person which would be a violation of this |
Code directed towards that person or a family member of |
that person. |
(a-4) A person commits cyberstalking when he or she |
knowingly, surreptitiously, and without lawful justification, |
installs or otherwise places electronic monitoring software or |
spyware on an electronic communication device as a means to |
harass another person and: |
(1) at any time transmits a threat of immediate or |
future bodily harm, sexual assault, confinement, or |
restraint and the threat is directed towards that person |
or a family member of that person; |
(2) places that person or a family member of that |
person in reasonable apprehension of immediate or future |
bodily harm, sexual assault, confinement, or restraint; or |
(3) at any time knowingly solicits the commission of |
an act by any person which would be a violation of this |
Code directed towards that person or a family member of |
that person. |
For purposes of this Section, an installation or placement |
is not surreptitious if: |
(1) with respect to electronic software, hardware, or |
computer applications, clear notice regarding the use of |
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the specific type of tracking software or spyware is |
provided by the installer in advance to the owners and |
primary users of the electronic software, hardware, or |
computer application; or |
(2) written or electronic consent of all owners and |
primary users of the electronic software, hardware, or |
computer application on which the tracking software or |
spyware will be installed has been sought and obtained |
through a mechanism that does not seek to obtain any other |
approvals or acknowledgement from the owners and primary |
users. |
(a-5) A person commits cyberstalking when he or she, |
knowingly and without lawful justification, creates and |
maintains an Internet website or webpage which is accessible |
to one or more third parties for a period of at least 24 hours, |
and which contains statements harassing another person and: |
(1) which communicates a threat of immediate or future |
bodily harm, sexual assault, confinement, or restraint, |
where the threat is directed towards that person or a |
family member of that person, or |
(2) which places that person or a family member of |
that person in reasonable apprehension of immediate or |
future bodily harm, sexual assault, confinement, or |
restraint, or |
(3) which knowingly solicits the commission of an act |
by any person which would be a violation of this Code |
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directed towards that person or a family member of that |
person.
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(b) Sentence. Cyberstalking is a Class 4 felony; a second |
or subsequent
conviction is a Class 3 felony.
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(c) For purposes of this Section: |
(0.5) "Anxiety" means excessive worry and apprehensive |
expectations, occurring more days than not for at least 6 |
months, about a number of events or activities, such as |
work or school performance and is associated with 3 or |
more of the following 6 symptoms with at least some |
symptoms present for more days than not for the past 6 |
months: |
(1)
restlessness or feeling keyed up or on edge; |
(2)
easily fatigued; |
(3)
difficulty concentrating or mind going blank; |
(4)
irritability; |
(5)
muscle tension; and |
(6)
sleep disturbance such as difficulty falling |
or staying asleep, or restless and unsatisfying sleep. |
The anxiety, worry, or physical symptoms cause |
clinically significant distress or impairment in social, |
occupational, or other important areas of functioning. |
(1) "Course of conduct" means 2 or more acts, |
including but not limited to acts in which a defendant |
directly, indirectly, or through third parties, by any |
action, method, device, or means follows, monitors, |
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observes, surveils, threatens, or communicates to or |
about, a person, engages in other non-consensual contact, |
or interferes with or damages a person's property or pet. |
The incarceration in a penal institution of a person who |
commits the course of conduct is not a bar to prosecution |
under this Section. |
(2) "Electronic communication" means any transfer of |
signs, signals, writings, sounds, data, or intelligence of |
any nature transmitted in whole or in part by a wire, |
radio, electromagnetic, photoelectric, or photo-optical |
system. "Electronic communication" includes transmissions |
through an electronic device including, but not limited |
to, a telephone, cellular phone, computer, or pager, which |
communication includes, but is not limited to, e-mail, |
instant message, text message, or voice mail. |
(2.1) "Electronic communication device" means an |
electronic device, including, but not limited to, a |
wireless telephone, personal digital assistant, or a |
portable or mobile computer. |
(2.2) "Electronic monitoring software or spyware" |
means software or an application that surreptitiously |
tracks computer activity on a device and records and |
transmits the information to third parties with the intent |
to cause injury or harm. For the purposes of this |
paragraph (2.2), "intent to cause injury or harm" does not |
include activities carried out in furtherance of the |
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prevention of fraud or crime or of protecting the security |
of networks, online services, applications, software, |
other computer programs, users, or electronic |
communication devices or similar devices. |
(3) "Emotional distress" means significant mental |
suffering, anxiety or alarm. |
(4) "Harass"
means to engage in a knowing and willful |
course of conduct directed at a
specific person
that |
alarms, torments, or terrorizes that person. |
(5) "Non-consensual contact" means any contact with |
the victim that is initiated or continued without the |
victim's consent, including but not limited to being in |
the physical presence of the victim; appearing within the |
sight of the victim; approaching or confronting the victim |
in a public place or on private property; appearing at the |
workplace or residence of the victim; entering onto or |
remaining on property owned, leased, or occupied by the |
victim; or placing an object on, or delivering an object |
to, property owned, leased, or occupied by the victim. |
(6) "Reasonable person" means a person in the victim's |
circumstances, with the victim's knowledge of the |
defendant and the defendant's prior acts. |
(7) "Third party" means any person other than the |
person violating these provisions and the person or |
persons towards whom the violator's actions are directed. |
(d) Telecommunications carriers, commercial mobile service |
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providers, and providers of information services, including, |
but not limited to, Internet service providers and hosting |
service providers, are not liable under this Section, except |
for willful and wanton misconduct, by virtue of the |
transmission, storage, or caching of electronic communications |
or messages of others or by virtue of the provision of other |
related telecommunications, commercial mobile services, or |
information services used by others in violation of this |
Section. |
(e) A defendant who directed the actions of a third party |
to violate this Section, under the principles of |
accountability set forth in Article 5 of this Code, is guilty |
of violating this Section as if the same had been personally |
done by the defendant, without regard to the mental state of |
the third party acting at the direction of the defendant. |
(f) It is not a violation of this Section to: |
(1) provide, protect, maintain, update, or upgrade |
networks, online services, applications, software, other |
computer programs, electronic communication devices, or |
similar devices under the terms of use applicable to those |
networks, services, applications, software, programs, or |
devices; |
(2) interfere with or prohibit terms or conditions in |
a contract or license related to networks, online |
services, applications, software, other computer programs, |
electronic communication devices, or similar devices; or |
