NY State Senate Bill 2017-S4041

Senate Bill S4041

2017-2018 Legislative Session

Requires employers and information technology employees to report child pornography to the state police

download bill text pdf

Archive: Last Bill Status - In Senate Committee Children And Families Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2018	referred to children and families
Feb 02, 2017	referred to children and families

2017-S4041 (ACTIVE) - Details

Current Committee:: Senate Children And Families
Law Section:: Social Services Law
Laws Affected:: Add §413-a, Soc Serv L

2017-S4041 (ACTIVE) - Summary

Requires employers and information technology employees to report child pornography to the state police either immediately or within 24 hours of discovery.

2017-S4041 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S4041

 TITLE OF BILL :  An act to amend the social services law, in relation
to requiring employers and information technology employees to report
child pornography to the state police

 PURPOSE OR GENERAL IDEA OF BILL :

Requires Information Technology (IT) employees, in the course of their
professional duties, to report findings of computer child pornography
to the New York State Police.

 SUMMARY OF SPECIFIC PROVISIONS :

Section 1:Creates a new Section 413-a of the Social Services Law.
Defines IT employee and establishes criteria and reporting
requirements.

Section 2:Directs that any willful failure to report a case of
computer child pornography, by an IT employee, is to be punishable by
a class A misdemeanor.

Section 3: Provides that any IT employee, who falsely reports cases of
computer child pornography, to be subject to the penalties contained
under Section 240.50 of the Penal Law.

Section 4: Provides immunity from liability (civil or criminal)for any
IT employee who, in their professional capacity reports in good faith,
cases of computer child pornography to the New York State Police.

Section 5: Establishes retaliatory personnel action protections for IT
employees who, in their professional capacity, report cases of child
pornography to the New York State Police.

 JUSTIFICATION :

Under current law, there is no requirement for Information Technology
employees to report cases of computer child pornography to law
enforcement authorities. This legislation would amend the Social
Services Law to include provisions to require IT employees who, in the
course of their professional duties discover computers containing
child pornography, to report it to the New York State Police.
Moreover, the legislation would include provisions to protect
employees, who in good faith make a report, as well as provisions to
protect customers who have been falsely accused. Increasingly, sexual
predators are using the unlimited access of the Internet as a means to
feed their sickness by downloading these images onto their personal
computers. Children are our most prized possession and as such we
should make every effort to protect them. IT employees are a first
line of defense in combating the proliferation of child pornography.
By requiring them to report cases of suspected child pornography we
add another weapon to our arsenal for combating child pornography.

 PRIOR LEGISLATIVE HISTORY :

New Bill

 EFFECTIVE DATE :
This act shall take effect in 90 days after it shall have become law.

2017-S4041 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4041
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             February 2, 2017
                                ___________
 
 Introduced  by  Sen. TEDISCO -- read twice and ordered printed, and when
   printed to be committed to the Committee on Children and Families
 
 AN ACT to amend the  social  services  law,  in  relation  to  requiring
   employers and information technology employees to report child pornog-
   raphy to the state police

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The social services law is amended by adding a new  section
 413-a to read as follows:
   §  413-A.  REPORTING OF CHILD PORNOGRAPHY BY EMPLOYERS AND INFORMATION
 TECHNOLOGY EMPLOYEES TO THE STATE POLICE. 1. REPORTING.  NOTWITHSTANDING
 ANY OTHER PROVISION OF LAW, ANY EMPLOYER, ANY COMPUTER ENGINEER, COMPUT-
 ER TECHNICIAN, MANAGEMENT INFORMATION ENGINEER OR MANAGEMENT INFORMATION
 TECHNICIAN WHO HAS KNOWLEDGE OF, OR OBSERVES, WITHIN THE SCOPE OF HIS OR
 HER PROFESSIONAL  CAPACITY  OR  EMPLOYMENT,  ANY  COMPUTER  IMAGE  WHICH
 DEPICTS  A  CHILD  WHOM  THE  EMPLOYER,  ENGINEER OR TECHNICIAN KNOWS OR
 REASONABLY SHOULD KNOW, TO BE UNDER THE AGE  OF  SEVENTEEN,  WHERE  SUCH
 CHILD IS:
   (A)  ACTUALLY,  OR  BY SIMULATION, ENGAGED IN ANY ACT OF SEXUAL INTER-
 COURSE WITH ANY PERSON OR ANIMAL;
   (B) ACTUALLY, OR BY SIMULATION, ENGAGED IN ANY ACT OF  SEXUAL  CONTACT
 INVOLVING  THE  MOUTH, ANUS OR SEXUAL ORGANS OF THE CHILD AND THE MOUTH,
 ANUS OR SEXUAL ORGANS OF ANOTHER PERSON OR ANIMAL;
   (C) ACTUALLY, OR BY SIMULATION, ENGAGED IN ANY ACT OF MASTURBATION;
   (D) ACTUALLY, OR BY SIMULATION, PORTRAYED AS BEING THE OBJECT  OF,  OR
 OTHERWISE  ENGAGED  IN  ANY ACT OF LEWD FONDLING, TOUCHING OR CARESSING,
 INVOLVING ANOTHER PERSON OR ANIMAL;
   (E) ACTUALLY, OR BY SIMULATION, ENGAGED IN ANY  ACT  OF  EXCRETION  OR
 URINATION WITHIN A SEXUAL CONTEXT; OR
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD06407-01-7

 S. 4041                             2
 
   (F)  ACTUALLY,  OR  BY  SIMULATION,  PORTRAYED  OR  DEPICTED AS BOUND,
 FETTERED, OR SUBJECT TO SADISTIC, MASOCHISTIC OR  SADOMASOCHISTIC  ABUSE
 IN ANY SEXUAL CONTACT;
 SHALL    REPORT SUCH INSTANCES TO THE STATE POLICE IMMEDIATELY OR WITHIN
 TWENTY-FOUR HOURS OF DISCOVERY.
   2. FAILURE TO REPORT. WILLFUL FAILURE TO REPORT SHALL BE PUNISHABLE BY
 A CLASS A MISDEMEANOR.
   3. FALSELY REPORTING. ANY EMPLOYER, COMPUTER ENGINEER, COMPUTER  TECH-
 NICIAN,  MANAGEMENT INFORMATION ENGINEER OR MANAGEMENT INFORMATION TECH-
 NICIAN WHO FALSELY REPORTS A CASE OF CHILD PORNOGRAPHY SHALL BE  SUBJECT
 TO THE PENALTIES CONTAINED UNDER SECTION 240.50 OF THE PENAL LAW.
   4.  IMMUNITY FROM LIABILITY. ANY EMPLOYER, COMPUTER ENGINEER, COMPUTER
 TECHNICIAN, MANAGEMENT INFORMATION ENGINEER  OR  MANAGEMENT  INFORMATION
 TECHNICIAN  PARTICIPATING IN GOOD FAITH, PURSUANT TO THIS SECTION, SHALL
 HAVE IMMUNITY FROM ANY LIABILITY, CIVIL OR CRIMINAL, THAT  MIGHT  OTHER-
 WISE  RESULT  BY REASON OF SUCH ACTION. FOR THE PURPOSES OF ANY CIVIL OR
 CRIMINAL PROCEEDING, THE GOOD FAITH OF ANY  PERSON  REQUIRED  TO  REPORT
 SUCH  CASES  SHALL  BE  PRESUMED,  PROVIDED  SUCH  PERSON  WAS ACTING IN
 DISCHARGE OF THEIR DUTIES AND WITHIN THE SCOPE OR THEIR EMPLOYMENT,  AND
 THAT  SUCH LIABILITY DID NOT RESULT FROM THE WILLFUL MISCONDUCT OR GROSS
 NEGLIGENCE OF SUCH PERSON, OFFICIAL OR INSTITUTION.
   5. RETALIATORY PERSONNEL ACTION BY  EMPLOYERS;  PROHIBITIONS.  (A)  AN
 EMPLOYER  SHALL NOT TAKE RETALIATORY PERSONNEL ACTION AGAINST AN EMPLOY-
 EE, WHO PURSUANT TO THIS SECTION, REPORTS INSTANCES OF CHILD PORNOGRAPHY
 TO THE STATE POLICE.
   (B)(I) AN EMPLOYEE WHO HAS BEEN THE SUBJECT OF A RETALIATORY PERSONNEL
 ACTION IN VIOLATION OF THIS SUBDIVISION MAY INSTITUTE A CIVIL ACTION  IN
 A  COURT  OF COMPETENT JURISDICTION FOR RELIEF AS SET FORTH IN PARAGRAPH
 (C) OF THIS SUBDIVISION WITHIN ONE YEAR AFTER  THE  ALLEGED  RETALIATORY
 PERSONNEL ACTION WAS TAKEN.
   (II)  ANY  ACTION AUTHORIZED BY THIS SUBDIVISION MAY BE BROUGHT IN THE
 COUNTY IN WHICH THE ALLEGED RETALIATORY PERSONNEL  ACTION  OCCURRED,  IN
 THE  COUNTY  IN WHICH THE COMPLAINANT RESIDES, OR IN THE COUNTY IN WHICH
 THE EMPLOYER HAS ITS PRINCIPAL PLACE OF BUSINESS.
   (III) IT SHALL BE A DEFENSE TO ANY ACTION  BROUGHT  PURSUANT  TO  THIS
 SUBDIVISION  THAT THE PERSONNEL ACTION WAS PREDICATED UPON GROUNDS OTHER
 THAN THE EMPLOYEE'S EXERCISE OF ANY RIGHTS PROTECTED  BY  THIS  SUBDIVI-
 SION.
   (C)  IN  ANY ACTION BROUGHT PURSUANT TO PARAGRAPH (B) OF THIS SUBDIVI-
 SION, THE COURT MAY ORDER RELIEF AS FOLLOWS:
   (I) AN INJUNCTION TO RESTRAIN CONTINUED VIOLATION OF THIS SECTION;
   (II) THE REINSTATEMENT OF THE  EMPLOYEE  TO  THE  SAME  POSITION  HELD
 BEFORE THE RETALIATORY PERSONNEL ACTION, OR TO AN EQUIVALENT POSITION;
   (III) THE REINSTATEMENT OF FULL FRINGE BENEFITS AND SENIORITY RIGHTS;
   (IV) THE COMPENSATION FOR LOST WAGES, BENEFITS AND OTHER REMUNERATION;
 AND
   (V)  THE  PAYMENT  BY THE EMPLOYER OF REASONABLE COSTS, DISBURSEMENTS,
 AND ATTORNEY'S FEES.
   (D) A COURT, IN ITS DISCRETION, MAY ALSO ORDER THAT REASONABLE  ATTOR-
 NEYS'  FEES  AND COURT COSTS AND DISBURSEMENTS BE AWARDED TO AN EMPLOYER
 IF THE COURT DETERMINES THAT AN ACTION BROUGHT BY AN EMPLOYEE UNDER THIS
 SUBDIVISION WAS WITHOUT BASIS IN LAW OR IN FACT.
   (E) NOTHING IN THIS  SUBDIVISION  SHALL  BE  DEEMED  TO  DIMINISH  THE
 RIGHTS,  PRIVILEGES,  OR REMEDIES OF ANY EMPLOYEE UNDER ANY OTHER LAW OR
 REGULATION OR UNDER ANY COLLECTIVE BARGAINING  AGREEMENT  OR  EMPLOYMENT
 CONTRACT;  EXCEPT  THAT  THE INSTITUTION OF AN ACTION IN ACCORDANCE WITH

 S. 4041                             3
 
 THIS SUBDIVISION SHALL BE DEEMED A WAIVER OF  THE  RIGHTS  AND  REMEDIES
 AVAILABLE  UNDER  ANY  OTHER  CONTRACT, COLLECTIVE BARGAINING AGREEMENT,
 LAW, RULE OR REGULATION OR UNDER THE COMMON LAW.
   6.  DEFINITIONS.  FOR  PURPOSES  OF  THIS  SECTION, UNLESS THE CONTEXT
 SPECIFICALLY INDICATES OTHERWISE:
   (A) "EMPLOYEE" MEANS AN INDIVIDUAL WHO PERFORMS SERVICES FOR AND UNDER
 THE CONTROL AND DIRECTION OF AN EMPLOYER FOR WAGES  OR  OTHER  REMUNERA-
 TION.
   (B)  "EMPLOYER"  MEANS  ANY  PERSON,  FIRM,  PARTNERSHIP, INSTITUTION,
 CORPORATION, OR ASSOCIATION THAT EMPLOYS ONE OR MORE EMPLOYEES.
   (C) "RETALIATORY PERSONNEL ACTION" MEANS THE DISCHARGE, SUSPENSION  OR
 DEMOTION  OF  AN  EMPLOYEE,  OR  OTHER  ADVERSE  EMPLOYMENT ACTION TAKEN
 AGAINST AN EMPLOYEE IN THE TERMS AND CONDITIONS OF EMPLOYMENT.
   § 2. This act shall take effect on the ninetieth day  after  it  shall
 have become a law.

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