S T A T E O F N E W Y O R K
________________________________________________________________________
5423
2009-2010 Regular Sessions
I N A S S E M B L Y
February 13, 2009
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Introduced by M. of A. ERRIGO, ALFANO, BURLING, DUPREY, KOLB, McDONOUGH,
TOBACCO, WALKER, FINCH -- Multi-Sponsored by -- M. of A. BARCLAY,
BARRA, CROUCH, HAWLEY, JORDAN, McKEVITT, MOLINARO, QUINN, SPANO,
THIELE, TOWNSEND -- read once and referred to the Committee on Codes
AN ACT to amend the penal law, the education law and the public service
law, in relation to creating the internet protection act; and repeal-
ing certain provisions of the penal law relating to disseminating
indecent material to minors in the first degree
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Short title. This act shall be known and may be cited as
the "internet protection act".
S 2. Section 235.20 of the penal law is amended by adding five new
subdivisions 8, 9, 10, 11 and 12 to read as follows:
8. "INTERNET" MEANS A MATRIX OF NETWORKS THAT CONNECTS COMPUTERS
AROUND THE WORLD.
9. "SEXUALLY EXPLICIT MATTER" MEANS SEXUALLY EXPLICIT VISUAL MATERIAL,
SEXUALLY EXPLICIT VERBAL MATERIAL, OR SEXUALLY EXPLICIT PERFORMANCE.
10. "SEXUALLY EXPLICIT PERFORMANCE" MEANS A MOTION PICTURE, EXHIBI-
TION, SHOW, REPRESENTATION, OR OTHER PRESENTATION THAT, IN WHOLE OR IN
PART, DEPICTS NUDITY, SEXUAL EXCITEMENT, EROTIC FONDLING, SEXUAL INTER-
COURSE, OR SADOMASOCHISTIC ABUSE. SEXUALLY EXPLICIT PERFORMANCE
INCLUDES, BUT IS NOT LIMITED TO, ANY PERFORMANCE DESCRIBED IN THIS
SUBDIVISION COMMUNICATED, TRANSMITTED, DISPLAYED, OR OTHERWISE MADE
AVAILABLE BY MEANS OF THE INTERNET OR A COMPUTER OR ACCESS SOFTWARE.
11. "SEXUALLY EXPLICIT VERBAL MATERIAL" MEANS ANY BOOK, PAMPHLET,
MAGAZINE, PRINTED MATTER REPRODUCED IN ANY MANNER, OR SOUND RECORDING
THAT CONTAINS AN EXPLICIT AND DETAILED VERBAL DESCRIPTION OR NARRATIVE
ACCOUNT OF SEXUAL EXCITEMENT, EROTIC FONDLING, SEXUAL INTERCOURSE, OR
SADOMASOCHISTIC ABUSE. SEXUALLY EXPLICIT VERBAL MATERIAL INCLUDES, BUT
IS NOT LIMITED TO, ANY VERBAL MATERIAL DESCRIBED IN THIS SUBDIVISION
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05930-01-9
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COMMUNICATED, TRANSMITTED, DISPLAYED, OR OTHERWISE MADE AVAILABLE BY
MEANS OF THE INTERNET OR A COMPUTER OR COMPUTER ACCESS SOFTWARE.
12. "SEXUALLY EXPLICIT VISUAL MATERIAL" MEANS A PICTURE, PHOTOGRAPH,
DRAWING, SCULPTURE, MOTION PICTURE FILM, OR SIMILAR VISUAL REPRESEN-
TATION THAT DEPICTS NUDITY, SEXUAL EXCITEMENT, EROTIC FONDLING, SEXUAL
INTERCOURSE, OR SADOMASOCHISTIC ABUSE, OR A BOOK, MAGAZINE, OR PAMPHLET
THAT CONTAINS SUCH A VISUAL REPRESENTATION. AN UNDEVELOPED PHOTOGRAPH,
MOLD OR SIMILAR VISUAL MATERIAL MAY BE SEXUALLY EXPLICIT MATERIAL
NOTWITHSTANDING THAT PROCESSING OR OTHER ACTS MAY BE REQUIRED TO MAKE
ITS SEXUALLY EXPLICIT CONTENT APPARENT. SEXUALLY EXPLICIT VISUAL MATERI-
AL INCLUDES, BUT IS NOT LIMITED TO, ANY VISUAL MATERIAL DESCRIBED IN
THIS SUBDIVISION COMMUNICATED, TRANSMITTED, DISPLAYED, OR OTHERWISE MADE
AVAILABLE BY MEANS OF THE INTERNET OR A COMPUTER OR COMPUTER ACCESS
SOFTWARE.
S 3. Section 235.22 of the penal law is REPEALED and a new section
235.22 is added to read as follows:
S 235.22 DISSEMINATING INDECENT MATERIAL TO A MINOR IN THE FIRST DEGREE.
1. A PERSON IS GUILTY OF DISSEMINATING INDECENT MATERIAL TO A MINOR IN
THE FIRST DEGREE WHEN SUCH PERSON:
(A) KNOWINGLY DISSEMINATES OR EXHIBITS TO A MINOR SEXUALLY EXPLICIT
VISUAL OR VERBAL MATERIAL THAT IS HARMFUL TO MINORS DEPICTING ACTUAL OR
SIMULATED NUDITY, SEXUAL CONDUCT OR SADOMASOCHISTIC ABUSE; AND
(B) BY MEANS OF SUCH DISSEMINATION OR EXHIBITION SUCH PERSON IMPOR-
TUNES, INVITES OR INDUCES A MINOR TO ENGAGE IN SEXUAL INTERCOURSE OR
SEXUAL CONTACT WITH SUCH PERSON, OR TO ENGAGE IN A SEXUAL PERFORMANCE,
OBSCENE SEXUAL PERFORMANCE, OR SEXUAL CONDUCT FOR SUCH PERSON'S BENEFIT.
2. A PERSON KNOWINGLY DISSEMINATES INDECENT MATERIAL TO A MINOR IF THE
PERSON KNOWS, IN WHOLE OR IN PART, BOTH THE NATURE OF THE MATTER AND THE
STATUS OF THE MINOR TO WHOM THE MATTER IS DISSEMINATED.
3. EXCEPT AS PROVIDED IN SUBDIVISION SIX OF THIS SECTION, A PERSON
KNOWS THE NATURE OF THE MATTER IF THE PERSON EITHER IS AWARE OF ITS
CHARACTER AND CONTENT OR RECKLESSLY DISREGARDS CIRCUMSTANCES SUGGESTING
ITS CHARACTER AND CONTENT.
4. EXCEPT AS PROVIDED IN SUBDIVISION SIX OF THIS SECTION, A PERSON
KNOWS THE STATUS OF A MINOR IF THE PERSON EITHER IS AWARE THAT THE
PERSON TO WHOM THE DISSEMINATION IS MADE IS UNDER EIGHTEEN YEARS OF AGE
OR RECKLESSLY DISREGARDS A SUBSTANTIAL RISK THAT THE PERSON TO WHOM THE
DISSEMINATION IS MADE IS UNDER EIGHTEEN YEARS OF AGE.
5. SUBDIVISIONS THREE AND FOUR OF THIS SECTION DO NOT APPLY TO AN
INTERNET OR COMPUTER NETWORK SERVICE PROVIDER WHO IN GOOD FAITH, AND
WITHOUT KNOWLEDGE OF THE NATURE OF THE INDECENT MATERIAL OR THE STATUS
OF A MINOR, PROVIDES THE MEDIUM FOR DISSEMINATING INDECENT MATERIAL TO
THE MINOR.
6. A VIOLATION OR ATTEMPTED VIOLATION OF THIS SECTION INVOLVING THE
INTERNET OR A COMPUTER, COMPUTER PROGRAM, COMPUTER SYSTEM, OR COMPUTER
NETWORK OCCURS IF THE VIOLATION ORIGINATES, TERMINATES, OR BOTH ORIGI-
NATES AND TERMINATES IN THIS STATE.
7. A VIOLATION OR ATTEMPTED VIOLATION OF THIS SECTION INVOLVING THE
INTERNET OR A COMPUTER, COMPUTER PROGRAM, COMPUTER SYSTEM, OR COMPUTER
NETWORK MAY BE PROSECUTED IN ANY JURISDICTION IN WHICH THE VIOLATION
ORIGINATED OR TERMINATED.
8. THIS SECTION DOES NOT APPLY TO THE DISSEMINATION OF INDECENT MATE-
RIAL TO A MINOR BY ANY OF THE FOLLOWING:
(A) A PARENT OR GUARDIAN WHO DISSEMINATES INDECENT MATERIAL TO HIS OR
HER CHILD OR WARD.
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(B) A TEACHER OR ADMINISTRATOR AT A PUBLIC OR PRIVATE ELEMENTARY OR
SECONDARY SCHOOL, AND WHO DISSEMINATES INDECENT MATERIAL TO A STUDENT AS
PART OF A SCHOOL PROGRAM PERMITTED BY LAW.
(C) A LICENSED PHYSICIAN OR LICENSED PSYCHOLOGIST WHO DISSEMINATES
INDECENT MATERIAL IN THE TREATMENT OF A PATIENT.
(D) A LIBRARIAN EMPLOYED BY A LIBRARY OF A PUBLIC OR PRIVATE ELEMENTA-
RY OR SECONDARY SCHOOL OR A LIBRARIAN EMPLOYED BY A PUBLIC LIBRARY AND
WHO DISSEMINATES INDECENT MATERIAL IN THE COURSE OF THAT PERSON'S
EMPLOYMENT.
(E) ANY PUBLIC OR PRIVATE COLLEGE OR UNIVERSITY OR ANY OTHER PERSON
WHO DISSEMINATES INDECENT MATERIAL FOR A LEGITIMATE MEDICAL, SCIENTIFIC,
GOVERNMENTAL, OR JUDICIAL PURPOSE.
(F) A PERSON WHO DISSEMINATES INDECENT MATERIAL THAT IS A PUBLIC DOCU-
MENT, PUBLICATION, RECORD, OR OTHER MATERIAL ISSUED BY A STATE, LOCAL,
OR FEDERAL OFFICIAL, DEPARTMENT, BOARD, COMMISSION, AGENCY, OR OTHER
GOVERNMENTAL ENTITY, OR AN ACCURATE REPUBLICATION OF SUCH A PUBLIC DOCU-
MENT, PUBLICATION, RECORD, OR OTHER MATERIAL.
DISSEMINATING INDECENT MATERIAL TO A MINOR IN THE FIRST DEGREE IS A
CLASS D FELONY.
S 4. The penal law is amended by adding a new section 235.25 to read
as follows:
S 235.25 DISPLAYING SEXUALLY EXPLICIT MATTER TO MINORS.
1. A PERSON IS GUILTY OF DISPLAYING SEXUALLY EXPLICIT MATTER TO A
MINOR IF THAT PERSON POSSESSES MANAGERIAL RESPONSIBILITY FOR A BUSINESS
ENTERPRISE SELLING VISUAL MATTER THAT DEPICTS SEXUAL INTERCOURSE OR
SADOMASOCHISTIC ABUSE AND IS HARMFUL TO MINORS, AND THAT PERSON KNOWING-
LY PERMITS A MINOR WHO IS NOT ACCOMPANIED BY A PARENT OR GUARDIAN TO
EXAMINE THAT MATTER.
2. A PERSON KNOWINGLY PERMITS A MINOR TO EXAMINE VISUAL MATTER THAT
DEPICTS SEXUAL INTERCOURSE OR SADOMASOCHISTIC ABUSE AND IS HARMFUL TO
MINORS IF THE PERSON KNOWS BOTH THE NATURE OF THE MATTER AND THE STATUS
OF THE MINOR PERMITTED TO EXAMINE THE MATTER.
3. A PERSON KNOWS THE NATURE OF THE MATTER IF THE PERSON EITHER IS
AWARE OF ITS CHARACTER AND CONTENT OR RECKLESSLY DISREGARDS CIRCUM-
STANCES SUGGESTING ITS CHARACTER AND CONTENT.
4. A PERSON KNOWS THE STATUS OF A MINOR IF THE PERSON EITHER IS AWARE
THAT THE PERSON WHO IS PERMITTED TO EXAMINE THE MATTER IS UNDER EIGHTEEN
YEARS OF AGE OR RECKLESSLY DISREGARDS A SUBSTANTIAL RISK THAT THE PERSON
WHO IS PERMITTED TO EXAMINE THE MATTER IS UNDER EIGHTEEN YEARS OF AGE.
DISPLAYING SEXUALLY EXPLICIT MATTER TO A MINOR IS A CLASS B MISDEMEA-
NOR.
S 5. Section 263.00 of the penal law is amended by adding a new subdi-
vision 9 to read as follows:
9. "INTERNET" MEANS A MATRIX OF NETWORKS THAT CONNECTS COMPUTERS
AROUND THE WORLD.
S 6. The penal law is amended by adding a new section 263.17 to read
as follows:
S 263.17 USE OF THE INTERNET.
A PERSON SHALL NOT USE THE INTERNET TO COMMUNICATE WITH A CHILD FOR
THE PURPOSE OF COMMITTING ANY CRIME DEFINED IN THIS ARTICLE.
USE OF THE INTERNET FOR THE COMMISSION OF SUCH CRIMES IS A CLASS C
FELONY.
S 7. Subdivision 2 of section 253 of the education law is amended to
read as follows:
2. The term "public" library as used in this chapter shall be
construed to mean a library, [other than professional, technical or
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public school library, established for free public purposes by official
action of a municipality or district or the legislature, where the whole
interests belong to the public] ESTABLISHED BY THE STATE; COUNTY, CITY,
TOWNSHIP, VILLAGE, SCHOOL DISTRICT OR OTHER LOCAL UNIT OF GOVERNMENT OR
AUTHORITY OR COMBINATION OF LOCAL UNITS OF GOVERNMENTS AND AUTHORITIES;
A COMMUNITY COLLEGE DISTRICT; A COLLEGE OR UNIVERSITY; OR ANY PRIVATE
LIBRARIES OPEN TO THE PUBLIC; the term "association" library shall be
construed to mean a library established and controlled, in whole or in
part, by a group of private individuals operating as an association,
closed corporation or as trustees under the provisions of a will or deed
of trust; and the term "free" as applied to a library shall be construed
to mean a library maintained for the benefit and free use on equal terms
of all the people of the community in which the library is located.
S 8. The education law is amended by adding a new section 253-a to
read as follows:
S 253-A. INTERNET ACCESS IN A PUBLIC LIBRARY. 1. AS USED IN THIS
SECTION THE TERM "INTERNET" MEANS A MATRIX OF NETWORKS THAT CONNECTS
COMPUTERS AROUND THE WORLD.
2. IF A PUBLIC LIBRARY OFFERS INTERNET ACCESS SERVICES TO THE PUBLIC,
THE GOVERNING BODY OF THAT LIBRARY IS MANDATED TO REQUIRE SUCH LIBRARY
RESTRICT ACCESS TO MINORS BY PROVIDING THE INTERNET ACCESS SERVICES IN
THE FOLLOWING MANNER:
(A) BY MAKING AVAILABLE, TO PERSONS OF ANY AGE, ONE OR MORE INTERNET
ACCESS COMPUTER TERMINALS THAT ARE RESTRICTED FROM RECEIVING OBSCENE OR
PORNOGRAPHIC MATERIAL; OR
(B) BY RESERVING, TO PERSONS EIGHTEEN YEARS OF AGE OR OLDER OR TO
PERSONS UNDER THE AGE OF EIGHTEEN YEARS THAT ARE ACCOMPANIED BY THE
PERSON'S PARENT OR GUARDIAN, ONE OR MORE INTERNET ACCESS COMPUTER TERMI-
NALS THAT ARE NOT RESTRICTED FROM RECEIVING ANY MATERIAL.
S 9. Paragraph h of subdivision 1 of section 272 of the education law,
as amended by chapter 787 of the laws of 1978, is amended to read as
follows:
h. (1) The commissioner shall by regulation provide the standard of
service with which such a public library system must comply. Such regu-
lations shall, among other things, relate to the total book stock; the
diversity of such book stock with respect to general subjects and type
of literature, provided that such regulations shall not, directly or
indirectly, prohibit the inclusion of a particular book, periodical or
material or the works of a particular author or the expression of a
particular point of view; annual additions to book stock; circulation of
book stock; maintenance of catalogues; number and location of libraries
or branch libraries; hours of operation and number and qualifications of
personnel, necessary to enable a public library system to render
adequate service. Such regulations may establish standards which differ
on the basis of population; density of population; the actual valuation
of the taxable property within the area served; the condition of library
facilities in existence on April first, nineteen hundred fifty-seven;
the amount raised by taxation by or for the area served; the relation of
such amount to population and actual value of the property taxed; the
relation of the amount of funds received by a public library system from
local taxes to that derived from private contributions; or on such other
basis as the commissioner finds necessary to provide for the equitable
distribution of state aid.
(2) SUCH REGULATIONS SHALL ALSO INCLUDE THE FOLLOWING PROVISIONS
PERTAINING TO INTERNET USE.
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(I) EACH PUBLIC LIBRARY SHALL DEVELOP A POLICY FOR ACCEPTABLE INTERNET
USE BY ITS PATRONS. EACH PUBLIC LIBRARY SHALL, AS PART OF SUCH POLICY,
ADOPT AND IMPLEMENT MEASURES TO RESTRICT THE ACCESS OF MINORS, AS SUCH
TERM IS DEFINED IN SUBDIVISION ONE OF SECTION 235.20 OF THE PENAL LAW,
TO MATERIAL THAT IS OBSCENE, AS SUCH TERM IS DEFINED IN SUBDIVISION ONE
OF SECTION 235.00 OF THE PENAL LAW, OR THAT IS HARMFUL TO MINORS, AS
SUCH TERM IS DEFINED IN SUBDIVISION SIX OF SECTION 235.20 OF THE PENAL
LAW, USING ANY COMPUTER EQUIPMENT OR SERVICE AVAILABLE FOR PUBLIC USE.
(II) NOTICE OF SUCH POLICY SHALL BE POSTED WITHIN THE PUBLIC LIBRARY
AT VARIOUS PLACES, INCLUDING ALL INTERNET ACCESS POINTS. COPIES OF SUCH
POLICY SHALL BE MADE AVAILABLE TO ALL PATRONS.
(III) NO PUBLIC LIBRARY SHALL PERMIT ANY CHILD UNDER THE AGE OF SEVEN-
TEEN YEARS TO USE AN INTERNET ACCESS TERMINAL WITHOUT THE PRIOR, WRITTEN
CONSENT OF SUCH CHILD'S PARENT OR GUARDIAN. SUCH CONSENT FORM SHALL
STATE THAT THE PARENT OR GUARDIAN AND THE CHILD HAVE REVIEWED THE POLICY
AND AGREE TO ABIDE BY IT.
(IV) IN ANY PUBLIC LIBRARY HAVING MULTIPLE INTERNET ACCESS TERMINALS,
ONE OR MORE TERMINALS SHALL BE SEGREGATED FROM THE OTHERS AND DEDICATED
FOR USE BY CHILDREN.
S 10. Subdivision 3 of section 751 of the education law, as amended by
section 4 of part A of chapter 436 of the laws of 1997, is amended and a
new subdivision 5 is added to read as follows:
3. No school district shall be required to purchase or otherwise
acquire software programs, the cost of which shall exceed an amount
equal to the software factor multiplied by the sum of the public school
district enrollment and the nonpublic school enrollment in the base year
as defined in subparagraphs two and three of paragraph n of subdivision
one of section thirty-six hundred two of this chapter UNLESS SUCH SCHOOL
DISTRICT IS REQUIRED TO PURCHASE COMPUTER PROGRAMS OR OTHER SYSTEMS
APPROVED BY THE PUBLIC SERVICE COMMISSION TO FILTER OR BLOCK MATERIAL
THAT IS HARMFUL TO MINORS, AS DEFINED IN SECTION 235.20 OF THE PENAL
LAW, PURSUANT TO REGULATIONS PROMULGATED BY THE PUBLIC SERVICE COMMIS-
SION AS AUTHORIZED BY SECTION NINETY-TWO-G OF THE PUBLIC SERVICE LAW.
5. A SCHOOL DISTRICT RECEIVING AID UNDER THIS SECTION MUST COMPLY WITH
REGULATIONS PROMULGATED BY THE PUBLIC SERVICE COMMISSION PURSUANT TO
SECTION NINETY-TWO-G OF THE PUBLIC SERVICE LAW.
S 11. The public service law is amended by adding a new section 92-g
to read as follows:
S 92-G. INFORMATION NETWORKS; CERTAIN MATERIAL TO BE FILTERED OR
BLOCKED. THE COMMISSION SHALL BE AUTHORIZED TO PROMULGATE REGULATIONS
REQUIRING PUBLIC LIBRARIES AND PUBLIC SCHOOLS WHICH UTILIZE TELECOMMUNI-
CATIONS, COMPUTER, DATA, THE INTERNET, AND INFORMATION SYSTEMS, TO
UTILIZE COMPUTER PROGRAMS OR OTHER SYSTEMS APPROVED BY THE COMMISSION TO
FILTER OR BLOCK MATTER THAT IS DEFINED AS HARMFUL TO MINORS UNDER
SECTION 235.20 OF THE PENAL LAW. THE INTERNET SHALL BE DEFINED AS AN
INTERNATIONAL COMPUTER NETWORK OF BOTH FEDERAL AND NON-FEDERAL INTEROP-
ERABLE PACKET SWITCHED DATA NETWORKS WHICH USERS MAY ACCESS THROUGH A
SERVICE PROVIDER.
S 12. This act shall take effect immediately; provided, however, that
sections two, three, four, five and six of this act shall take effect on
the first of November next succeeding the date on which it shall have
become a law and that any regulations authorized by this act are
directed to be adopted or completed 180 days after this act shall have
become a law.