CHAPTER 136
(HB 1104)
Eavesdropping, elements of the crime revised.
ENTITLED, An Act to
revise the elements of the crime of eavesdropping.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section
1.
That
§
23A-35A-20
be amended to read as follows:
23A-35A-20.
Except as provided in § 23A-35A-21, a person is guilty of a Class 5 felony who
being:
(1)
Not a sender or receiver of a telephone or telegraph communication,
knowingly
intentionally
and by means of an
instrument or
eavesdropping
device overhears or
records a telephone or telegraph communication, or aids, authorizes, employs, procures,
or permits another to so do, without the consent of either a sender or receiver thereof;
(2)
Not present during a conversation or discussion,
knowingly
intentionally
and by means
of an
instrument or
eavesdropping
device overhears or records such conversation or
discussion, or aids, authorizes, employs, procures, or permits another to so do, without
the consent of a party to such conversation or discussion; or
(3)
Not a member of a jury,
knowingly
intentionally
records or listens to by means of an
instrument or
eavesdropping
device the deliberations of
such
the
jury or aids,
authorizes, employs, procures, or permits another to so do.
Section
2.
That
§
23A-35A-1
be amended to read as follows:
23A-35A-1.
Terms used in this chapter mean:
(1)
"Aggrieved person," a person who was a party to any intercepted wire or oral
communication or a person against whom the interception was directed;
(2)
"Attorney general," the attorney general of the State of South Dakota
, unless otherwise
specified
;
(3)
"Chapter 119 of the United States Code," Chapter 119 of Part I of Title 18, United
States Code, being Public Law 90-351, the Omnibus Crime Control and Safe Streets
Act of 1968;
(4)
"Communications common carrier," the meaning which is given the term "common
carrier" by section 153(h) of Title 47 of the United States Code;
(5)
"Contents," when used with respect to any wire or oral communication, any information
concerning the identity of the parties to such communication or the existence, substance,
purport, or meaning of that communication;
(6)
"
Electronic, mechanical or other
Eavesdropping
device," any
device
electronic,
mechanical,
or
other
apparatus which
can be
is intentionally
used to intercept a wire or
oral communication other than:
(a)
Any telephone or telegraph instrument, equipment, or facility, or any component
thereof, (i) furnished to the subscriber or user by a communications common
carrier in the ordinary course of its business and being used by the subscriber or
user in the ordinary course of its business; or (ii) 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
duty
;
(b)
A hearing aid or similar device being used to correct subnormal hearing to not
better than normal;
(7)
"Intercept," the aural acquisition of the contents of any wire or oral communication
through the use of any
electronic, mechanical, or other
eavesdropping
device;
(8)
"Investigative or law enforcement officer," any officer of the State of South Dakota or
any political subdivision thereof who is empowered by the laws of this state to conduct
investigations of or to make arrests for offenses designated and enumerated in this
chapter, any law enforcement officer of the United States and any attorney authorized
by the laws of this state to prosecute or participate in the prosecution of offenses
designated and enumerated in this chapter;
(9)
"Judge," or "judge of competent jurisdiction," the judge of any circuit court of the State
of South Dakota;
(10)
"Oral communication," any oral communication uttered by a person exhibiting an
expectation that such communication is not subject to interception under circumstances
justifying such expectation;
(11)
"Pen register," a device which records or decodes electronic or other impulses which
identify the numbers dialed or otherwise transmitted on the telephone line to which the
device is attached, but the term does not include any device used by a provider or
customer of a wire communication service for billing, or recording as an incident to
billing, for communications services provided by the provider or customer of a wire
communication service for cost accounting or other like purposes in the ordinary course
of its business;
(12)
"Person," any employee, or agent of the United States or any state or political
subdivision thereof, and any individual, partnership, limited liability company,
association, joint stock company, trust, or corporation;
(13)
"State's attorney," the
qualified
state's attorney of any county of the State of South
Dakota;
(14)
"Trap and trace device," a device which captures the incoming electronic or other
impulses which identify the originating number of an instrument or device from which
a wire communication was transmitted; and
(15)
"Wire communication," any communication 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 furnished or
operated by any person engaged as a common carrier in providing or operating such
facilities for the transmission of interstate or foreign communications.
Signed February 7, 2006