Bill Text: IL SB3391 | 2009-2010 | 96th General Assembly | Engrossed

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Bill Title: Amends the Criminal Code of 1961. Provides that recording or listening with the aid of any device to incoming telephone calls of phone lines publicly listed or advertised as telephone answering services and utilized by business or professional organizations for such purposes is exempt from an eavesdropping violation. Provides that if such recordings contain information relevant to a criminal investigation, they must be turned over to local law enforcement authorities within 24 hours from the time of such recording or as soon as practicable and shall not be otherwise disseminated. Provides that failure on the part of the individual or business operating any such recording or listening device to comply with these requirements shall eliminate any civil or criminal immunity conferred upon that individual or business by the operation of the eavesdropping exemption provisions. Effective immediately.

Spectrum: Bipartisan Bill

Status: (Engrossed - Dead) 2010-03-11 - Referred to Rules Committee [SB3391 Detail]

Download: Illinois-2009-SB3391-Engrossed.html

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AN ACT concerning 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 changing
Section 14-3 as follows:
(720 ILCS 5/14-3)
Sec. 14-3. Exemptions. The following activities shall be
exempt from the provisions of this Article:
(a) Listening to radio, wireless and television
communications of any sort where the same are publicly made;
(b) Hearing conversation when heard by employees of any
common carrier by wire incidental to the normal course of their
employment in the operation, maintenance or repair of the
equipment of such common carrier by wire so long as no
information obtained thereby is used or divulged by the hearer;
(c) Any broadcast by radio, television or otherwise whether
it be a broadcast or recorded for the purpose of later
broadcasts of any function where the public is in attendance
and the conversations are overheard incidental to the main
purpose for which such broadcasts are then being made;
(d) Recording or listening with the aid of any device to
any emergency communication made in the normal course of
operations by any federal, state or local law enforcement

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agency or institutions dealing in emergency services,
including, but not limited to, hospitals, clinics, ambulance
services, fire fighting agencies, any public utility,
emergency repair facility, civilian defense establishment or
military installation;
(e) Recording the proceedings of any meeting required to be
open by the Open Meetings Act, as amended;
(f) Recording or listening with the aid of any device to
incoming telephone calls of phone lines publicly listed or
advertised as consumer "hotlines" by manufacturers or
retailers of food and drug products. Such recordings must be
destroyed, erased or turned over to local law enforcement
authorities within 24 hours from the time of such recording and
shall not be otherwise disseminated. Failure on the part of the
individual or business operating any such recording or
listening device to comply with the requirements of this
subsection shall eliminate any civil or criminal immunity
conferred upon that individual or business by the operation of
this Section;
(g) With prior notification to the State's Attorney of the
county in which it is to occur, recording or listening with the
aid of any device to any conversation where a law enforcement
officer, or any person acting at the direction of law
enforcement, is a party to the conversation and has consented
to it being intercepted or recorded under circumstances where
the use of the device is necessary for the protection of the

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law enforcement officer or any person acting at the direction
of law enforcement, in the course of an investigation of a
forcible felony, a felony violation of the Illinois Controlled
Substances Act, a felony violation of the Cannabis Control Act,
a felony violation of the Methamphetamine Control and Community
Protection Act, any "streetgang related" or "gang-related"
felony as those terms are defined in the Illinois Streetgang
Terrorism Omnibus Prevention Act, or any felony offense
involving any weapon listed in paragraphs (1) through (11) of
subsection (a) of Section 24-1 of this Code. Any recording or
evidence derived as the result of this exemption shall be
inadmissible in any proceeding, criminal, civil or
administrative, except (i) where a party to the conversation
suffers great bodily injury or is killed during such
conversation, or (ii) when used as direct impeachment of a
witness concerning matters contained in the interception or
recording. The Director of the Department of State Police shall
issue regulations as are necessary concerning the use of
devices, retention of tape recordings, and reports regarding
their use;
(g-5) With approval of the State's Attorney of the county
in which it is to occur, recording or listening with the aid of
any device to any conversation where a law enforcement officer,
or any person acting at the direction of law enforcement, is a
party to the conversation and has consented to it being
intercepted or recorded in the course of an investigation of

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any offense defined in Article 29D of this Code. In all such
cases, an application for an order approving the previous or
continuing use of an eavesdropping device must be made within
48 hours of the commencement of such use. In the absence of
such an order, or upon its denial, any continuing use shall
immediately terminate. The Director of State Police shall issue
rules as are necessary concerning the use of devices, retention
of tape recordings, and reports regarding their use.
Any recording or evidence obtained or derived in the course
of an investigation of any offense defined in Article 29D of
this Code shall, upon motion of the State's Attorney or
Attorney General prosecuting any violation of Article 29D, be
reviewed in camera with notice to all parties present by the
court presiding over the criminal case, and, if ruled by the
court to be relevant and otherwise admissible, it shall be
admissible at the trial of the criminal case.
This subsection (g-5) is inoperative on and after January
1, 2005. No conversations recorded or monitored pursuant to
this subsection (g-5) shall be inadmissible in a court of law
by virtue of the repeal of this subsection (g-5) on January 1,
2005;
(g-6) With approval of the State's Attorney of the county
in which it is to occur, recording or listening with the aid of
any device to any conversation where a law enforcement officer,
or any person acting at the direction of law enforcement, is a
party to the conversation and has consented to it being

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intercepted or recorded in the course of an investigation of
child pornography, aggravated child pornography, indecent
solicitation of a child, child abduction, luring of a minor,
sexual exploitation of a child, predatory criminal sexual
assault of a child, aggravated criminal sexual abuse in which
the victim of the offense was at the time of the commission of
the offense under 18 years of age, criminal sexual abuse by
force or threat of force in which the victim of the offense was
at the time of the commission of the offense under 18 years of
age, or aggravated criminal sexual assault in which the victim
of the offense was at the time of the commission of the offense
under 18 years of age. In all such cases, an application for an
order approving the previous or continuing use of an
eavesdropping device must be made within 48 hours of the
commencement of such use. In the absence of such an order, or
upon its denial, any continuing use shall immediately
terminate. The Director of State Police shall issue rules as
are necessary concerning the use of devices, retention of
recordings, and reports regarding their use. Any recording or
evidence obtained or derived in the course of an investigation
of child pornography, aggravated child pornography, indecent
solicitation of a child, child abduction, luring of a minor,
sexual exploitation of a child, predatory criminal sexual
assault of a child, aggravated criminal sexual abuse in which
the victim of the offense was at the time of the commission of
the offense under 18 years of age, criminal sexual abuse by

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force or threat of force in which the victim of the offense was
at the time of the commission of the offense under 18 years of
age, or aggravated criminal sexual assault in which the victim
of the offense was at the time of the commission of the offense
under 18 years of age shall, upon motion of the State's
Attorney or Attorney General prosecuting any case involving
child pornography, aggravated child pornography, indecent
solicitation of a child, child abduction, luring of a minor,
sexual exploitation of a child, predatory criminal sexual
assault of a child, aggravated criminal sexual abuse in which
the victim of the offense was at the time of the commission of
the offense under 18 years of age, criminal sexual abuse by
force or threat of force in which the victim of the offense was
at the time of the commission of the offense under 18 years of
age, or aggravated criminal sexual assault in which the victim
of the offense was at the time of the commission of the offense
under 18 years of age, be reviewed in camera with notice to all
parties present by the court presiding over the criminal case,
and, if ruled by the court to be relevant and otherwise
admissible, it shall be admissible at the trial of the criminal
case. Absent such a ruling, any such recording or evidence
shall not be admissible at the trial of the criminal case;
(h) Recordings made simultaneously with the use of an
in-car video camera recording of an oral conversation between a
uniformed peace officer, who has identified his or her office,
and a person in the presence of the peace officer whenever (i)

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an officer assigned a patrol vehicle is conducting an
enforcement stop; or (ii) patrol vehicle emergency lights are
activated or would otherwise be activated if not for the need
to conceal the presence of law enforcement.
For the purposes of this subsection (h), "enforcement stop"
means an action by a law enforcement officer in relation to
enforcement and investigation duties, including but not
limited to, traffic stops, pedestrian stops, abandoned vehicle
contacts, motorist assists, commercial motor vehicle stops,
roadside safety checks, requests for identification, or
responses to requests for emergency assistance;
(h-5) Recordings of utterances made by a person while in
the presence of a uniformed peace officer and while an occupant
of a police vehicle including, but not limited to, (i)
recordings made simultaneously with the use of an in-car video
camera and (ii) recordings made in the presence of the peace
officer utilizing video or audio systems, or both, authorized
by the law enforcement agency;
(h-10) Recordings made simultaneously with a video camera
recording during the use of a taser or similar weapon or device
by a peace officer if the weapon or device is equipped with
such camera;
(h-15) Recordings made under subsection (h), (h-5), or
(h-10) shall be retained by the law enforcement agency that
employs the peace officer who made the recordings for a storage
period of 90 days, unless the recordings are made as a part of

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an arrest or the recordings are deemed evidence in any
criminal, civil, or administrative proceeding and then the
recordings must only be destroyed upon a final disposition and
an order from the court. Under no circumstances shall any
recording be altered or erased prior to the expiration of the
designated storage period. Upon completion of the storage
period, the recording medium may be erased and reissued for
operational use;
(i) Recording of a conversation made by or at the request
of a person, not a law enforcement officer or agent of a law
enforcement officer, who is a party to the conversation, under
reasonable suspicion that another party to the conversation is
committing, is about to commit, or has committed a criminal
offense against the person or a member of his or her immediate
household, and there is reason to believe that evidence of the
criminal offense may be obtained by the recording;
(j) The use of a telephone monitoring device by either (1)
a corporation or other business entity engaged in marketing or
opinion research or (2) a corporation or other business entity
engaged in telephone solicitation, as defined in this
subsection, to record or listen to oral telephone solicitation
conversations or marketing or opinion research conversations
by an employee of the corporation or other business entity
when:
(i) the monitoring is used for the purpose of service
quality control of marketing or opinion research or

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telephone solicitation, the education or training of
employees or contractors engaged in marketing or opinion
research or telephone solicitation, or internal research
related to marketing or opinion research or telephone
solicitation; and
(ii) the monitoring is used with the consent of at
least one person who is an active party to the marketing or
opinion research conversation or telephone solicitation
conversation being monitored.
No communication or conversation or any part, portion, or
aspect of the communication or conversation made, acquired, or
obtained, directly or indirectly, under this exemption (j), may
be, directly or indirectly, furnished to any law enforcement
officer, agency, or official for any purpose or used in any
inquiry or investigation, or used, directly or indirectly, in
any administrative, judicial, or other proceeding, or divulged
to any third party.
When recording or listening authorized by this subsection
(j) on telephone lines used for marketing or opinion research
or telephone solicitation purposes results in recording or
listening to a conversation that does not relate to marketing
or opinion research or telephone solicitation; the person
recording or listening shall, immediately upon determining
that the conversation does not relate to marketing or opinion
research or telephone solicitation, terminate the recording or
listening and destroy any such recording as soon as is

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practicable.
Business entities that use a telephone monitoring or
telephone recording system pursuant to this exemption (j) shall
provide current and prospective employees with notice that the
monitoring or recordings may occur during the course of their
employment. The notice shall include prominent signage
notification within the workplace.
Business entities that use a telephone monitoring or
telephone recording system pursuant to this exemption (j) shall
provide their employees or agents with access to personal-only
telephone lines which may be pay telephones, that are not
subject to telephone monitoring or telephone recording.
For the purposes of this subsection (j), "telephone
solicitation" means a communication through the use of a
telephone by live operators:
(i) soliciting the sale of goods or services;
(ii) receiving orders for the sale of goods or
services;
(iii) assisting in the use of goods or services; or
(iv) engaging in the solicitation, administration, or
collection of bank or retail credit accounts.
For the purposes of this subsection (j), "marketing or
opinion research" means a marketing or opinion research
interview conducted by a live telephone interviewer engaged by
a corporation or other business entity whose principal business
is the design, conduct, and analysis of polls and surveys

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measuring the opinions, attitudes, and responses of
respondents toward products and services, or social or
political issues, or both;
(k) Electronic recordings, including but not limited to, a
motion picture, videotape, digital, or other visual or audio
recording, made of a custodial interrogation of an individual
at a police station or other place of detention by a law
enforcement officer under Section 5-401.5 of the Juvenile Court
Act of 1987 or Section 103-2.1 of the Code of Criminal
Procedure of 1963;
(l) Recording the interview or statement of any person when
the person knows that the interview is being conducted by a law
enforcement officer or prosecutor and the interview takes place
at a police station that is currently participating in the
Custodial Interview Pilot Program established under the
Illinois Criminal Justice Information Act;
(m) An electronic recording, including but not limited to,
a motion picture, videotape, digital, or other visual or audio
recording, made of the interior of a school bus while the
school bus is being used in the transportation of students to
and from school and school-sponsored activities, when the
school board has adopted a policy authorizing such recording,
notice of such recording policy is included in student
handbooks and other documents including the policies of the
school, notice of the policy regarding recording is provided to
parents of students, and notice of such recording is clearly

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posted on the door of and inside the school bus.
Recordings made pursuant to this subsection (m) shall be
confidential records and may only be used by school officials
(or their designees) and law enforcement personnel for
investigations, school disciplinary actions and hearings,
proceedings under the Juvenile Court Act of 1987, and criminal
prosecutions, related to incidents occurring in or around the
school bus;
(n) Recording or listening to an audio transmission from a
microphone placed by a person under the authority of a law
enforcement agency inside a bait car surveillance vehicle while
simultaneously capturing a photographic or video image; and
(o) The use of an eavesdropping camera or audio device
during an ongoing hostage or barricade situation by a law
enforcement officer or individual acting on behalf of a law
enforcement officer when the use of such device is necessary to
protect the safety of the general public, hostages, or law
enforcement officers or anyone acting on their behalf; and .
(p) Recording or listening with the aid of any device to
incoming telephone calls of phone lines publicly listed or
advertised as telephone answering services and utilized by
business or professional organizations for such purposes. If
such recordings contain information relevant to a criminal
investigation, they must be turned over to local law
enforcement authorities within 24 hours from the time of such
recording or as soon as practicable and shall not be otherwise

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disseminated. Failure on the part of the individual or business
operating any such recording or listening device to comply with
the requirements of this subsection shall eliminate any civil
or criminal immunity conferred upon that individual or business
by the operation of this Section.
(Source: P.A. 95-258, eff. 1-1-08; 95-352, eff. 8-23-07;
95-463, eff. 6-1-08; 95-876, eff. 8-21-08; 96-425, eff.
8-13-09; 96-547, eff. 1-1-10; 96-643, eff. 1-1-10; 96-670, eff.
8-25-09; revised 10-9-09.)
Section 99. Effective date. This Act takes effect upon
becoming law.