The Hacker's Encyclopedia 1998

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SMITH-HURD ILLINOIS ANNOTATED STATUTES COPR. (c) WEST 1990 No Claim to Orig. Govt. Works CHAPTER 38. CRIMINAL LAW AND PROCEDURE DIVISION I. CRIMINAL CODE OF 1961 TITLE III. SPECIFIC OFFENSES PART C. OFFENSES DIRECTED AGAINST PROPERTY ARTICLE 16D. COMPUTER CRIME DATE EFFECTIVE < Article 16D, consisting of paragraphs 16D-1 to 16D-7, was added by P.A. 85-926, s 1, eff. Dec. 1, 1987. > S. H. A. Ch. 38, D. I, T. III, Pt. C, Art. 16D, Refs & Annos IL ST Ch. 38, D. I, T. III, Pt. C, Art. 16D, Refs & Annos Crim.Code s 16D-1 16D-1. Short title s 16D-1. Short title. This Article shall be known and may be cited as the "COMPUTER CRIME Prevention Law". 1977 Main Volume Credit(s) Laws 1961, p. 1983, s 16D-1, added by P.A. 85-926, s 1, eff. Dec. 1, 1987. HISTORICAL NOTES HISTORICAL AND STATUTORY NOTES 1990 Pocket Part Historical and Statutory Notes Section 4 of P.A. 85-926, certified Dec. 1, 1987, provided: "This Act takes effect upon its becoming a law." Title of Act: An Act to add Article 16D to the "Criminal Code of 1961", approved July 28, 1961, as amended, and to amend certain Acts herein named. P.A. 85-926, certified and eff. Dec. 1, 1987. 16D-2. Definitions s 16D-2. Definitions. As used in this Article, unless the context otherwise indicates: (a) "COMPUTER" means a device that accepts, processes, stores, retrieves or outputs data, and includes but is not limited to auxiliary storage and telecommunications devices connected to COMPUTERS. (b) "COMPUTER program" or "program" means a series of coded instructions or statements in a form acceptable to a COMPUTER which causes the COMPUTER to process data and supply the results of the data processing. (c) "Data" means a representation of information, knowledge, facts, concepts or instructions, including program documentation, which is prepared in a formalized manner and is stored or processed in or transmitted by a COMPUTER. Data shall be considered property and may be in any form including but not limited to printouts, magnetic or optical storage media, punch cards or data stored internally in the memory of the COMPUTER. (d) In addition to its meaning as defined in Section 15-1 of this Code, "property" means: (1) electronic impulses; (2) electronically produced data; (3) confidential, copyrighted or proprietary information; (4) private identification codes or numbers which permit access to a COMPUTER by authorized COMPUTER users or generate billings to consumers for purchase of goods and services, including but not limited to credit card transactions and telecommunications services or permit electronic fund transfers; (5) software or programs in either machine or human readable form; or (6) any other tangible or intangible item relating to a COMPUTER or any part thereof. (e) "Access" means to use, instruct, communicate with, store data in, retrieve or intercept data from, or otherwise utilize any services of a COMPUTER. (f) "Services" includes but is not limited to COMPUTER time, data manipulation or storage functions. (g) "Vital services or operations" means those services or operations required to provide, operate, maintain, and repair network cabling, transmission, distribution, or COMPUTER facilities necessary to ensure or protect the public health, safety, or welfare. Public health, safety, or welfare include, but are not limited to, services provided by medical personnel or institutions, fire departments, emergency services agencies, national defense contractors, armed forces or militia personnel, private and public utility companies, or law enforcement agencies. 1977 Main Volume Credit(s) Laws 1961, p. 1983, s 16D-2, added by P.A. 85-926, s 1, eff. Dec. 1, 1987. REFERENCES LIBRARY REFERENCES 1990 Pocket Part Library References Words and Phrases (Perm. Ed.) 16D-3. COMPUTER tampering s 16D-3. COMPUTER Tampering. (a) A person commits the offense of COMPUTER tampering when he knowingly and without the authorization of a COMPUTER'S owner, as defined in Section 15-2 of this Code, or in excess of the authority granted to him: (1) Accesses or causes to be accessed a COMPUTER or any part thereof, or a program or data; (2) Accesses or causes to be accessed a COMPUTER or any part thereof, or a program or data, and obtains data or services; (3) Accesses or causes to be accessed a COMPUTER or any part thereof, or a program or data, and damages or destroys the COMPUTER or alters, deletes or removes a COMPUTER program or data; (4) Inserts or attempts to insert a "program" into a COMPUTER or COMPUTER program knowing or having reason to believe that such "program" contains information or commands that will or may damage or destroy that COMPUTER, or any other COMPUTER subsequently accessing or being accessed by that COMPUTER, or that will or may alter, delete or remove a COMPUTER program or data from that COMPUTER, or any other COMPUTER program or data in a COMPUTER subsequently accessing or being accessed by that COMPUTER, or that will or may cause loss to the users of that COMPUTER or the users of a COMPUTER which accesses or which is accessed by such "program". (b) Sentence. (1) A person who commits the offense of COMPUTER tampering as set forth in subsection (a)(1) of this Section shall be guilty of a Class B misdemeanor. (2) A person who commits the offense of COMPUTER tampering as set forth in subsection (a)(2) of this Section shall be guilty of a Class A misdemeanor and a Class 4 felony for the second or subsequent offense. (3) A person who commits the offense of COMPUTER tampering as set forth in subsection (a)(3) or subsection (a)(4) of this Section shall be guilty of a Class 4 felony and a Class 3 felony for the second or subsequent offense. (c) Whoever suffers loss by reason of a violation of subsection (a)(4) of this Section may, in a civil action against the violator, obtain appropriate relief. In a civil action under this Section, the court may award to the prevailing party reasonable attorney's fees and other litigation expenses. 1977 Main Volume Credit(s) Laws 1961, p. 1983, s 16D-3, added by P.A. 85-926, s 1, eff. Dec. 1, 1987. 1990 Pocket Part Credit(s) P.A. 85-926, s 1, eff. Dec. 1, 1987. Amended by P.A. 86-762, s 1, eff. Jan. 1, 1990. HISTORICAL NOTES HISTORICAL AND STATUTORY NOTES 1990 Pocket Part Historical and Statutory Notes P.A. 86-762 made it a CRIME to insert or attempt to insert a program knowing that it will or may damage or destroy that COMPUTER or any other COMPUTER subsequently accessing or being accessed by that COMPUTER or alter or delete data and authorized the sufferor of such loss to maintain a civil action to obtain appropriate relief. 16D-4. Aggravated COMPUTER tampering s 16D-4. Aggravated COMPUTER Tampering. (a) A person commits aggravated COMPUTER tampering when he commits the offense of COMPUTER tampering as set forth in subsection (a)(3) of Section 16D-3 and he knowingly: (1) causes disruption of or interference with vital services or operations of State or local government or a public utility; or (2) creates a strong probability of death or great bodily harm to one or more individuals. (b) Sentence. (1) A person who commits the offense of aggravated COMPUTER tampering as set forth in subsection (a)(1) of this Section shall be guilty of a Class 3 felony. (2) A person who commits the offense of aggravated COMPUTER tampering as set forth in subsection (a)(2) of this Section shall be guilty of a Class 2 felony. 1977 Main Volume Credit(s) Laws 1961, p. 1983, s 16D-4, added by P.A. 85-926, s 1, eff. Dec. 1, 1987. 1990 Pocket Part Credit(s) P.A. 85-926, s 1, eff. Dec. 1, 1987. Amended by P.A. 86-820, Art. III, s 3-17, eff. Sept. 7, 1989. HISTORICAL NOTES HISTORICAL AND STATUTORY NOTES 1990 Pocket Part Historical and Statutory Notes P.A. 86-820, Art. III, the second 1989 Technical Corrections Revisory Law, amends various Acts to delete obsolete text, to correct patent and technical errors, and to revise cross-references. For provisions of Art. I, s 1-1 relating to intent and Art. IV, s 4-1, relating to effective dates and acceleration of Acts with later effective dates or extension or revival of repealed Acts, see Historical Note following ch. 24, P 8-11-1. 16D-5. COMPUTER fraud s 16D-5. COMPUTER Fraud. (a) A person commits the offense of COMPUTER fraud when he knowingly: (1) Accesses or causes to be accessed a COMPUTER or any part thereof, or a program or data, for the purpose of devising or executing any scheme, artifice to defraud, or as part of a deception; (2) Obtains use of, damages, or destroys a COMPUTER or any part thereof, or alters, deletes, or removes any program or data contained therein, in connection with any scheme, artifice to defraud, or as part of a deception; or (3) Accesses or causes to be accessed a COMPUTER or any part thereof, or a program or data, and obtains money or control over any such money, property, or services of another in connection with any scheme, artifice to defraud, or as part of a deception. (b) Sentence. (1) A person who commits the offense of COMPUTER fraud as set forth in subsection (a)(1) of this Section shall be guilty of a Class 4 felony. (2) A person who commits the offense of COMPUTER fraud as set forth in subsection (a)(2) of this Section shall be guilty of a Class 3 felony. (3) A person who commits the offense of COMPUTER fraud as set forth in subsection (a)(3) of this Section shall: (i) be guilty of a Class 4 felony if the value of the money, property or services is $1,000 or less; or (ii) be guilty of a Class 3 felony if the value of the money, property or services is more than $1,000 but less than $50,000; or (iii) be guilty of a Class 2 felony if the value of the money, property or services is $50,000 or more. 1977 Main Volume Credit(s) Laws 1961, p. 1983, s 16D-5, added by P.A. 85-926, s 1, eff. Dec. 1, 1987. 16D-6. Forfeiture s 16D-6. Forfeiture. 1. Any person who commits the offense of COMPUTER fraud as set forth in Section 16D-5 shall forfeit, according to the provisions of this Section, any monies, profits or proceeds, and any interest or property which the sentencing court determines he has acquired or maintained, directly or indirectly, in whole or in part, as a result of such offense. Such person shall also forfeit any interest in, security, claim against, or contractual right of any kind which affords him a source of influence over any enterprise which he has established, operated, controlled, conducted or participated in conducting, where his relationship to or connection with any such thing or activity directly or indirectly, in whole or in part, is traceable to any item or benefit which he has obtained or acquired through COMPUTER fraud. Proceedings instituted pursuant to this Section shall be subject to and conducted in accordance with the following procedures: (a) The sentencing court shall, upon petition by the prosecuting agency, whether it is the Attorney General or a State's Attorney, at any time following sentencing, conduct a hearing to determine whether any property or property interest is subject to forfeiture under this Section. At the forfeiture hearing the People of the State of Illinois shall have the burden of establishing, by a preponderance of the evidence, that the property or property interests are subject to such forfeiture. (b) In any action brought by the People of the State of Illinois under this Section, the circuit courts of Illinois shall have jurisdiction to enter such restraining orders, injunctions or prohibitions, or to take such other action in connection with any real, personal, or mixed property or other interest subject to forfeiture, as they shall consider proper. (c) In any action brought by the People of the State of Illinois under this Section, wherein any restraining order, injunction or prohibition or any other action in connection with any property or interest subject to forfeiture under this Section is sought, the circuit court presiding over the trial of the person or persons charged with COMPUTER fraud shall first determine whether there is probable cause to believe that the person or persons so charged have committed the offense of COMPUTER fraud and whether the property or interest is subject to forfeiture pursuant to this Section. In order to make this determination, prior to entering any such order, the court shall conduct a hearing without a jury, where the People shall establish: (1) probable cause that the person or persons so charged have committed the offense of COMPUTER fraud, and (2) probable cause that any property or interest may be subject to forfeiture pursuant to this Section. Such hearing may be conducted simultaneously with a preliminary hearing if the prosecution is commenced by information or complaint, or by motion of the People at any stage in the proceedings. The court may enter a finding of probable cause at a preliminary hearing following the filing of an information charging the offense of COMPUTER fraud or the return of an indictment by a grand jury charging the offense of COMPUTER fraud as sufficient evidence of probable cause for purposes of this Section. Upon such a finding, the circuit court shall enter such restraining order, injunction or prohibition, or shall take such other action in connection with any such property or other interest subject to forfeiture under this Section, as is necessary to insure that such property is not removed from the jurisdiction of the court, concealed, destroyed or otherwise disposed of by the owner or holder of that property or interest prior to a forfeiture hearing under this Section. The Attorney General or State's Attorney shall file a certified copy of such restraining order, injunction or other prohibition with the recorder of deeds or registrar of titles of each county where any such property of the defendant may be located. No such injunction, restraining order or other prohibition shall affect the rights of any bona fide purchaser, mortgagee, judgment creditor or other lienholder arising prior to the date of such filing. The court may, at any time, upon verified petition by the defendant, conduct a hearing to release all or portions of any such property or interest which the court previously determined to be subject to forfeiture or subject to any restraining order, injunction, prohibition or other action. The court may release such property to the defendant for good cause shown and within the sound discretion of the court. (d) Upon conviction of a person under Section 16D-5, the court shall authorize the Attorney General to seize and sell all property or other interest declared forfeited under this Act, unless such property is required by law to be destroyed or is harmful to the public. The court may order the Attorney General to segregate funds from the proceeds of such sale sufficient: (1) to satisfy any order of restitution, as the court may deem appropriate; (2) to satisfy any legal right, title, or interest which the court deems superior to any right, title, or interest of the defendant at the time of the commission of the acts which gave rise to forfeiture under this Section; or (3) to satisfy any bona-fide purchaser for value of the right, title, or interest in the property who was without reasonable notice that the property was subject to forfeiture. Following the entry of an order of forfeiture, the Attorney General shall publish notice of the order and his intent to dispose of the property. Within the 30 days following such publication, any person may petition the court to adjudicate the validity of his alleged interest in the property. After the deduction of all requisite expenses of administration and sale, the Attorney General shall distribute the proceeds of such sale, along with any moneys forfeited or seized as follows: (1) 50% shall be distributed to the unit of local government whose officers or employees conducted the investigation into COMPUTER fraud and caused the arrest or arrests and prosecution leading to the forfeiture. Amounts distributed to units of local government shall be used for training or enforcement purposes relating to detection, investigation or prosecution of financial CRIMES, including COMPUTER fraud. In the event, however, that the investigation, arrest or arrests and prosecution leading to the forfeiture were undertaken solely by a State agency, the portion provided hereunder shall be paid into the State Police Services Fund of the Illinois Department of State Police to be used for training or enforcement purposes relating to detection, investigation or prosecution of financial CRIMES, including COMPUTER fraud. (2) 50% shall be distributed to the county in which the prosecution and petition for forfeiture resulting in the forfeiture was instituted by the State's Attorney, and deposited in a special fund in the county treasury and appropriated to the State's Attorney for use in training or enforcement purposes relating to detection, investigation or prosecution of financial CRIMES, including COMPUTER fraud. Where a prosecution and petition for forfeiture resulting in the forfeiture has been maintained by the Attorney General, 50% of the proceeds shall be paid into the Attorney General's Financial CRIME Prevention Fund. Where the Attorney General and the State's Attorney have participated jointly in any part of the proceedings, 25% of the proceeds forfeited shall be paid to the county in which the prosecution and petition for forfeiture resulting in the forfeiture occurred, and 25% shall be paid to the Attorney General's Financial CRIME Prevention Fund to be used for the purposes as stated in this subsection. 2. Where any person commits a felony under any provision of this Code or another statute and the instrumentality used in the commission of the offense, or in connection with or in furtherance of a scheme or design to commit the offense, is a COMPUTER owned by the defendant or if the defendant is a minor, owned by his or her parents or legal guardian, the COMPUTER shall be subject to the provisions of this Section. However, in no case shall a COMPUTER, or any part thereof, be subject to the provisions of the Section if the COMPUTER accessed in the commission of the offense is owned or leased by the victim or an innocent third party at the time of the commission of the offense or if the rights of creditors, lienholders, or any person having a security interest in the COMPUTER at the time of the commission of the offense shall be adversely affected. 1977 Main Volume Credit(s) Laws 1961, p. 1983, s 16D-6, added by P.A. 85-926, s 1, eff. Dec. 1, 1987. 1990 Pocket Part Credit(s) Amended by P.A. 85-1042, s 1, eff. July 13, 1988. HISTORICAL NOTES HISTORICAL AND STATUTORY NOTES 1990 Pocket Part Historical and Statutory Notes P.A. 85-1042 substituted a reference to the State Police Services Fund for a reference to the Law Enforcement Services Fund. Section 11 of P.A. 85-1042, approved July 13, 1988, provided: "This Act takes effect July 1, 1988." 16D-7. Rebuttable presumption--Without authority s 16D-7. Rebuttable Presumption--without authority. In the event that a person accesses or causes to be accessed a COMPUTER, which access requires a confidential or proprietary code which has not been issued to or authorized for use by that person, a rebuttable presumption exists that the COMPUTER was accessed without the authorization of its owner or in excess of the authority granted. 1977 Main Volume Credit(s) Laws 1961, p. 1983, s 16D-7, added by P.A. 85-926, s 1, eff. Dec. 1, 1987.