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Bill 77

                    Current Status

Bill Number:                      77
Type of Legislation:              General Bill GB
Introducing Body:                 Senate
Introduced Date:                  20010110
Primary Sponsor:                  Jackson
All Sponsors:                     Jackson, Ford, Elliott
Drafted Document Number:          l:\s-res\dj\005cons.jh.doc
Residing Body:                    Senate
Current Committee:                Judiciary Committee 11 SJ
Subject:                          Consent to Record Act; wire, oral, 
                                  electronic communication; interception of; 
                                  Crimes, Telephones, Telecommunications


                        History

Body    Date      Action Description                     Com     Leg Involved
______  ________  ______________________________________ _______ ____________
Senate  20010110  Introduced, read first time,           11 SJ
                  referred to Committee


              Versions of This Bill

TO AMEND TITLE 16 OF THE CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO CRIMES AND OFFENSES, BY ADDING CHAPTER 10 SO AS TO ENACT THE "CONSENT TO RECORD ACT" TO MAKE IT UNLAWFUL FOR A PERSON TO: (1) WILLFULLY INTERCEPT, ENDEAVOR TO INTERCEPT, OR PROCURE ANY OTHER PERSON TO INTERCEPT OR ENDEAVOR TO INTERCEPT A WIRE, ORAL, OR ELECTRONIC COMMUNICATION WHERE THE PERSON IS A PARTY TO THE COMMUNICATION UNLESS ALL OF THE PARTIES TO THE COMMUNICATION HAVE GIVEN PRIOR CONSENT TO THE INTERCEPTION; (2) WILLFULLY DISCLOSE, OR ENDEAVOR TO DISCLOSE, TO ANY OTHER PERSON THE CONTENTS OF ANY WIRE, ORAL, OR ELECTRONIC COMMUNICATION, KNOWING OR HAVING REASON TO KNOW THAT THE INFORMATION WAS OBTAINED THROUGH THE INTERCEPTION OF A WIRE, ORAL, OR ELECTRONIC COMMUNICATION; AND (3) WILLFULLY USE, OR ENDEAVOR TO USE, THE CONTENTS OF ANY WIRE, ORAL, OR ELECTRONIC COMMUNICATION, KNOWING OR HAVING REASON TO KNOW THAT THE INFORMATION WAS OBTAINED THROUGH THE INTERCEPTION OF A WIRE, ORAL, OR ELECTRONIC COMMUNICATION; TO PROVIDE AN EXEMPTION FROM THESE PROHIBITIONS FOR AN INVESTIGATIVE OR LAW ENFORCEMENT OFFICER ACTING PURSUANT TO OTHER LAW AUTHORIZING SUCH CONDUCT; AND TO DEFINE RELATED TERMS.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Title 16 of the 1976 Code is amended by adding:

Section 16-10-10. This chapter shall be cited as the 'Consent to Record Act.'

Section 16-10-20. (A) It is unlawful for a person to willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept a wire, oral, or electronic communication where the person is a party to the communication unless all of the parties to the communication have given prior consent to the interception.

(B) It is unlawful for a person to willfully disclose, or endeavor to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this section.

(C) It is unlawful to willfully use, or endeavor to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this section.

(D) Subsections (A), (B), and (C) of this section do not apply to an investigative or law enforcement officer acting in the ordinary course of business. An investigative or law enforcement officer may engage in the conduct prohibited by subsections (A), (B), and (C) only if otherwise authorized by the United States Constitution, the South Carolina Constitution, federal law, state law other than this section, or a judicial decision rendered by a court of competent jurisdiction.

(E) Any person who violates subsections (A), (B), or (C) of this section is guilty of a felony and is subject to imprisonment for not more than five years or a fine of not more than ten thousand dollars, or both.

Section 16-10-30. As used in this chapter, the following terms have the meanings indicated:

(A)(1) `Wire communication' means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of a connection in a switching station) furnished or operated by any person licensed to engage in providing or operating such facilities for the transmission of communications.

(2) `Wire communication' includes any electronic storage of a communication described in this paragraph.

(3) `Wire communication' does not include the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit.

(B)(1) `Oral communication' means any conversation or words spoken to or by any person in private conversation.

(2) `Oral communication' does not include any electronic communication.

(C) `Intercept' means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.

(D) `Electronic, mechanical, or other device' means any device or electronic communication other than:

(1) any telephone or telegraph instrument, equipment or other facility for the transmission of electronic communications, or any component thereof: (a) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by the subscriber or user for connection to the facilities of the service and used in the ordinary course of its business; or (b) being used by a communications common carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties; or

(2) a hearing aid or similar device being used to correct subnormal hearing to not better than normal.

(E) `Person' means any employee or agent of this State or a political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation.

(F) `Investigative or law enforcement officer' means any officer of this State or a political subdivision of this State, who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this subtitle, any sworn law enforcement officer of the federal government or of any other state or a political subdivision of another state, working with and under the direction of an investigative or law enforcement officer of this State or a political subdivision of this State, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses.

(G) `Contents,' when used with respect to any wire, oral, or electronic communication, includes any information concerning the identity of the parties to the communication or the existence, substance, purport, or meaning of that communication.

(H) `Communications common carrier' means any person engaged as a common carrier for hire in the transmission of wire or electronic communications.

(I)(1) `Electronic communication' means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photooptical system.

(2) `Electronic communication' does not include:

(a) the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit;

(b) any wire or oral communication;

(c) any communication made through a tone-only paging device; or

(d) any communication from a tracking device.

(J) `User' means any person or entity that:

(1) uses an electronic communication service; and

(2) is duly authorized by the provider of the service to engage in that use.

(K) `Electronic communications system' means any wire, radio,

electromagnetic, photooptical, or photoelectronic facility for the

transmission of electronic communications, and any computer facility or related electronic equipment for the electronic storage of electronic communications.

(L) `Electronic communication service' means any service that provides to users of the service the ability to send or receive wire or electronic communications.

(M) `Electronic storage' means:

(1) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission of the communication; and

(2) any storage of a wire or electronic communication by an electronic communication service for purposes of backup protection of the communication.

(N) `Aural transfer' means a transfer containing the human voice at any point between and including the point of origin and the point of reception."

SECTION 2. This act takes effect upon approval by the Governor.

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