S T A T E O F N E W Y O R K
________________________________________________________________________
953
2013-2014 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 9, 2013
___________
Introduced by M. of A. KELLNER, JAFFEE, GRAF, MILLER, GUNTHER, WEPRIN,
GABRYSZAK, ROBINSON, MAISEL, ZEBROWSKI -- Multi-Sponsored by -- M. of
A. CROUCH, GALEF, GIBSON, GOODELL, MARKEY, McDONOUGH, McKEVITT,
McLAUGHLIN, MONTESANO, RAIA -- read once and referred to the Committee
on Codes
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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01886-01-3
A. 953 2
THE E-MAIL ORIGINATED FROM A DIFFERENT SOURCE WITHOUT THE EXPRESS
CONSENT FROM THE ACCOUNT HOLDER.
(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.