S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 6238--A

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                             March 10, 2011
                               ___________

Introduced  by M. of A. KELLNER -- read once and referred to the Commit-
  tee on Codes -- committee discharged, bill amended, ordered  reprinted
  as amended and recommitted to said committee

AN  ACT  to  amend  the  penal  law, in relation to enacting the digital
  impersonation prevention act

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  This  act shall be known and may be cited as the "digital
impersonation prevention act".
  S 2. The penal law is amended by adding a new section 190.87  to  read
as follows:
S 190.87 DIGITAL IMPERSONATION.
  1.  (A)  A  PERSON  IS GUILTY OF DIGITAL IMPERSONATION WHEN HE OR SHE,
KNOWINGLY, WITH INTENT TO DEFRAUD AND WITHOUT CONSENT, CREDIBLY IMPERSO-
NATES ANOTHER ACTUAL PERSON THROUGH OR ON AN INTERNET  WEB  SITE  OR  BY
OTHER  ELECTRONIC  MEANS  FOR  PURPOSES  OF:  (I) HARMING, INTIMIDATING,
THREATENING OR DEFRAUDING ANOTHER PERSON; (II) TRANSMITTING  UNSOLICITED
COMMERCIAL SOLICITATIONS OR UNSOLICITED BULK MESSAGES; OR (III) COPYING,
ACCESSING, DOWNLOADING OR UTILIZING A CONTACT LIST.
  (B)  FOR  PURPOSES  OF  THIS  SECTION, AN IMPERSONATION IS CREDIBLE IF
ANOTHER PERSON WOULD REASONABLY BELIEVE, OR DID REASONABLY BELIEVE, THAT
THE DEFENDANT WAS OR IS THE PERSON WHO WAS IMPERSONATED.
  2. FOR PURPOSES OF THIS SECTION: (A) "ELECTRONIC  MEANS" SHALL INCLUDE
CREATING OR OPENING AN E-MAIL ACCOUNT OR AN  ACCOUNT  OR  PROFILE  ON  A
SOCIAL NETWORKING INTERNET WEB SITE IN ANOTHER PERSON'S NAME; OR ACCESS-
ING  ANOTHER  PERSON'S  PRE-EXISTING  E-MAIL  ACCOUNT  OR  AN ACCOUNT OR
PROFILE ON A SOCIAL NETWORKING INTERNET WEB SITE; OR ALTERING OR  CHANG-
ING  THE  PROPERTIES OF AN E-MAIL, OR E-MAIL HEADER, TO APPEAR AS THOUGH
THE E-MAIL ORIGINATED  FROM  A  DIFFERENT  SOURCE  WITHOUT  THE  EXPRESS
CONSENT FROM THE ACCOUNT HOLDER.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09358-03-1

              

A. 6238--A                          2

  (B)  "CONTACT  LIST"  SHALL  INCLUDE  ANY  LIST OF THIRD-PARTY CONTACT
NAMES, ADDRESSES, TELEPHONE NUMBERS,  MOBILE  PHONE  NUMBERS,  FACSIMILE
NUMBERS, E-MAIL ADDRESSES, INSTANT MESSENGER NAMES, OR OTHER INFORMATION
USED FOR CONTACTING INDIVIDUALS.
  (C)  "UNSOLICITED  COMMERCIAL  SOLICITATIONS" SHALL INCLUDE ANY ADVER-
TISEMENT RELATED TO THE AVAILABILITY OR QUALITY OF ANY PROPERTY,  GOODS,
OR  SERVICES  OR  TRANSMISSION  OF  A HYPERLINK TO A WEB SITE OR UNIFORM
RESOURCE LOCATOR (URL) WHICH HAS ANY MATERIAL ADVERTISING THE AVAILABIL-
ITY OR QUALITY OF ANY PROPERTY, GOODS, OR SERVICES.
  (D) "UNSOLICITED BULK MESSAGES" SHALL INCLUDE THE TRANSMISSION  OF  AN
E-MAIL,  INSTANT MESSAGE, OR SOCIAL NETWORKING POST THAT IS PUBLISHED TO
MORE THAN ONE UNIQUE RECIPIENT.
  3. A VIOLATION OF SUBDIVISION ONE OF THIS SECTION SHALL BE  PUNISHABLE
BY  A  FINE NOT TO EXCEED ONE THOUSAND DOLLARS OR BY IMPRISONMENT NOT TO
EXCEED ONE YEAR, OR BY BOTH THE FINE AND IMPRISONMENT.
  4. IN ADDITION TO ANY OTHER  CIVIL  REMEDY  AVAILABLE,  A  PERSON  WHO
SUFFERS  DAMAGE  OR  LOSS BY REASON OF A VIOLATION OF SUBDIVISION ONE OF
THIS SECTION MAY BRING A CIVIL ACTION AGAINST THE VIOLATOR FOR STATUTORY
DAMAGES OF FIVE HUNDRED DOLLARS  PER OCCURRENCE,  COMPENSATORY  DAMAGES,
AND INJUNCTIVE RELIEF OR OTHER EQUITABLE RELIEF. IF THE COURT FINDS THAT
THE  DEFENDANT WILLFULLY OR KNOWINGLY VIOLATED THIS SECTION OR THE REGU-
LATIONS PRESCRIBED UNDER THIS SECTION, THE COURT MAY, IN ITS DISCRETION,
INCREASE THE AMOUNT OF THE AWARD TO AN AMOUNT EQUAL  TO  NOT  MORE  THAN
THREE TIMES THE AMOUNT AVAILABLE UNDER THIS SUBDIVISION.
  5.  FOR  PURPOSES OF THIS SECTION, "OCCURRENCE" SHALL INCLUDE EACH ACT
OF CREATING OR OPENING AN E-MAIL ACCOUNT OR AN ACCOUNT OR PROFILE  ON  A
SOCIAL  NETWORKING INTERNET WEB SITE; ACCESSING ANOTHER PERSON'S PRE-EX-
ISTING E-MAIL ACCOUNT, ACCOUNT OR PROFILE ON A SOCIAL NETWORKING  INTER-
NET  WEB SITE OR CONTACT LIST; ALTERING OR CHANGING THE PROPERTIES OF AN
E-MAIL, OR E-MAIL HEADER, TO APPEAR AS THOUGH THE E-MAIL ORIGINATED FROM
A DIFFERENT SOURCE; AND THE TRANSMISSION OF  AN  UNSOLICITED  COMMERCIAL
SOLICITATION TO A UNIQUE RECIPIENT.
  6. (A) THIS SECTION MAY NOT BE CONSTRUED TO IMPOSE ANY LIABILITY ON AN
INTERNET  SERVICE PROVIDER, INTERACTIVE COMPUTER SERVICE, COMPUTER HARD-
WARE OR SOFTWARE PROVIDER, OR WEB SITE OPERATOR OR ADMINISTRATOR, OR ITS
EMPLOYEES, UNLESS THE PROVIDER, OPERATOR, ADMINISTRATOR, OR EMPLOYEE  IS
THE  PERSON  IMPERSONATING  AN ACTUAL PERSON. NOTHING IN THIS SECTION IS
INTENDED TO PRECLUDE OTHER COMMON LAW CAUSES  OF  ACTION  AGAINST  THESE
ENTITIES.
  (B)  THIS  SECTION MAY NOT BE CONSTRUED TO LIMIT ANY OTHER CIVIL CAUSE
OF ACTION AVAILABLE TO A PERSON UNDER STATUTE OR COMMON LAW OR ANY CRIM-
INAL PROSECUTION.
  S 3. This act shall take effect on the first of November next succeed-
ing the date upon which it shall have become a law.