S T A T E   O F   N E W   Y O R K
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                                    326
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 9, 2019
                                ___________
 
 Introduced  by M. of A. BRAUNSTEIN, PAULIN, SIMOTAS, BARRETT, BENEDETTO,
   McDONOUGH, MONTESANO, BLANKENBUSH, RAIA, OTIS,  FINCH,  QUART,  ORTIZ,
   BRABENEC,   FRIEND,  STIRPE,  SCHIMMINGER,  GIGLIO,  ABBATE,  HYNDMAN,
   SEAWRIGHT, MOSLEY, GOTTFRIED, HEVESI, PERRY, WEPRIN, LAVINE,  WOERNER,
   FERNANDEZ  --  Multi-Sponsored  by  --  M.  of A. CROUCH, ENGLEBRIGHT,
   GALEF, M. L. MILLER, PALMESANO, RODRIGUEZ -- read once and referred to
   the Committee on Codes
 
 AN ACT to amend the penal law, in relation to establishing the crime  of
   non-consensual dissemination of sexually explicit images
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The penal law is amended by adding two new sections  250.70
 and 250.75 to read as follows:
 § 250.70 NON-CONSENSUAL DISSEMINATION OF SEXUALLY EXPLICIT IMAGES.
   A PERSON IS GUILTY OF NON-CONSENSUAL DISSEMINATION OF SEXUALLY EXPLIC-
 IT  IMAGES  WHEN HE OR SHE KNOWINGLY AND WITHOUT CONSENT OF THE DEPICTED
 PERSON DISSEMINATES A PHOTOGRAPH, FILM,  VIDEOTAPE,  RECORDING,  OR  ANY
 OTHER  REPRODUCTION  OF THE IMAGE OF SUCH DEPICTED PERSON WHOSE INTIMATE
 PARTS ARE EXPOSED OR WHO IS ENGAGED IN AN ACT OF SEXUAL CONTACT, WHEN  A
 REASONABLE  PERSON  WOULD  HAVE KNOWN THAT THE PERSON DEPICTED WOULD NOT
 HAVE CONSENTED TO SUCH DISSEMINATION, AND UNDER CIRCUMSTANCES  IN  WHICH
 THE  DEPICTED  PERSON HAS A REASONABLE EXPECTATION OF PRIVACY.  A PERSON
 WHO HAS CONSENTED TO THE CAPTURE OR POSSESSION OF AN  IMAGE  WITHIN  THE
 CONTEXT  OF  A PRIVATE OR CONFIDENTIAL RELATIONSHIP RETAINS A REASONABLE
 EXPECTATION  OF  PRIVACY  WITH  REGARD  TO  DISSEMINATION  BEYOND   THAT
 RELATIONSHIP.
   1. FOR THE PURPOSES OF THIS SECTION:
   (A)  "INTIMATE  PARTS"  MEANS THE NAKED GENITALS, PUBIC AREA, ANUS, OR
 FEMALE POST-PUBESCENT NIPPLE OF THE PERSON.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD02655-01-9

 A. 326                              2
 
   (B) "SEXUAL CONTACT" MEANS BUT IS NOT LIMITED TO, MASTURBATION,  GENI-
 TAL, ANAL, OR ORAL SEX, SEXUAL PENETRATION WITH OBJECTS, OR THE TRANSFER
 OR TRANSMISSION OF SEMEN UPON ANY PART OF THE DEPICTED PERSON'S BODY.
   2. THIS SECTION SHALL NOT APPLY TO:
   (A)  LAWFUL  AND COMMON PRACTICES OF LAW ENFORCEMENT, CRIMINAL REPORT-
 ING, OR LEGAL PROCEEDINGS, OR DISSEMINATIONS MADE IN  THE  REPORTING  OF
 UNLAWFUL ACTIVITY;
   (B)  SITUATIONS  INVOLVING  VOLUNTARY EXPOSURE IN PUBLIC OR COMMERCIAL
 SETTINGS, OR DISSEMINATIONS MADE FOR A LEGITIMATE PUBLIC PURPOSE; OR
   (C) PROVIDERS OF AN INTERACTIVE COMPUTER SERVICE,  AS  DEFINED  IN  47
 U.S.C. § 230(F), FOR IMAGES PROVIDED BY ANOTHER PERSON.
   NON-CONSENSUAL  DISSEMINATION OF SEXUALLY EXPLICIT IMAGES IS A CLASS A
 MISDEMEANOR.
 § 250.75 CIVIL CAUSE OF ACTION FOR NON-CONSENSUAL DISSEMINATION OF SEXU-
            ALLY EXPLICIT IMAGES.
   1. A CIVIL CAUSE OF ACTION LIES AGAINST  A  PERSON  WHO  DISSEMINATES,
 THREATENS  TO  DISSEMINATE  AN IMAGE OF ANOTHER PERSON IDENTIFIABLE FROM
 THE IMAGE ITSELF OR INFORMATION DISPLAYED IN CONNECTION WITH  THE  IMAGE
 AND  WHOSE  INTIMATE  PARTS  ARE EXPOSED OR IS ENGAGED IN SEXUAL CONDUCT
 WITHOUT THAT OTHER PERSON'S CONSENT, IF THE ACTOR:
   (A) OBTAINED THE IMAGE  OR  IMAGES  UNDER  CIRCUMSTANCES  IN  WHICH  A
 REASONABLE  PERSON WOULD KNOW OR UNDERSTAND THAT THE IMAGE WAS TO REMAIN
 PRIVATE, INCLUDING BUT NOT LIMITED TO IMAGES SHARED WITHIN  THE  CONTEXT
 OF  A  CONFIDENTIAL RELATIONSHIP THAT WERE THEN DISSEMINATED BEYOND SUCH
 RELATIONSHIP; OR
   (B) KNOWINGLY OBTAINED THE IMAGE OR IMAGES UNDER  FALSE  PRETENSES  OR
 WITHOUT  AUTHORIZATION  OR  BY  EXCEEDING AUTHORIZED ACCESS TO PROPERTY,
 ACCOUNTS, MESSAGES, FILES, DEVICES, OR RESOURCES.
   2. THE FOLLOWING AFFIRMATIVE DEFENSE SHALL APPLY IF:
   (A) THE DISTRIBUTED MATERIAL  WAS  CREATED  OR  DISTRIBUTED  UNDER  AN
 AGREEMENT BY THE PERSON APPEARING IN THE MATERIAL FOR ITS PUBLIC USE AND
 DISTRIBUTION; OR
   (B)  THE  DISTRIBUTED MATERIAL CONSTITUTES A MATTER OF PUBLIC CONCERN,
 LAWFUL AND COMMON PRACTICES  OF  LAW  ENFORCEMENT,  CRIMINAL  REPORTING,
 LEGAL  PROCEEDINGS,  MEDICAL  TREATMENT,  OR  SCIENTIFIC  OR EDUCATIONAL
 ACTIVITIES; OR
   (C) THE DISTRIBUTED MATERIAL  WAS  PHOTOGRAPHED,  FILMED,  VIDEOTAPED,
 RECORDED,  OR  OTHERWISE  REPRODUCED IN A PUBLIC PLACE AND UNDER CIRCUM-
 STANCES IN WHICH THE PERSON DEPICTED HAD NO  REASONABLE  EXPECTATION  OF
 PRIVACY.
   3. IN ADDITION TO OTHER RELIEF AVAILABLE AT LAW, INCLUDING AN ORDER BY
 THE  COURT TO DESTROY ANY IMAGE OBTAINED OR DISSEMINATED IN VIOLATION OF
 THIS SECTION, AND TO PRESERVE DISCOVERABLE INFORMATION, AND  PRELIMINARY
 AND PERMANENT INJUNCTIVE RELIEF, THE ACTOR SHALL BE LIABLE TO THE PLAIN-
 TIFF FOR:
   (A)  ACTUAL  DAMAGES,  BUT  NOT  LESS  THAN  LIQUIDATED DAMAGES, TO BE
 COMPUTED AT THE RATE OF ONE THOUSAND DOLLARS PER DAY FOR  EACH  DAY  THE
 IMAGE  OR  IMAGES  WERE VIEWABLE OR EACH INSTANCE A THREAT TO DISTRIBUTE
 WAS MADE OR AN IMAGE FRAUDULENTLY OBTAINED UP TO  THIRTY  DAYS,  OR  TEN
 THOUSAND DOLLARS, WHICHEVER IS HIGHER; AND
   (B) PUNITIVE DAMAGES; AND
   (C) REASONABLE COURT COSTS AND ATTORNEYS' FEES.
   4.  IN  AN ACTION BROUGHT UNDER THIS SECTION, ALL IDENTIFYING INFORMA-
 TION ABOUT THE PLAINTIFF  MAY  BE  REDACTED  FROM  PLEADINGS  AND  COURT
 FILINGS  AND  THE PLAINTIFF MAY PROCEED UNDER PSEUDONYM; THE COURT SHALL
 INFORM THE PLAINTIFF OF THE OPTION TO PROCEED  UNDER  PSEUDONYM  AT  THE

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 EARLIEST  POSSIBLE POINT AND SHALL MAINTAIN THE RECORDS IN A MANNER THAT
 PROTECTS THE PLAINTIFF'S CONFIDENTIALITY.
   5.  THE FOLLOWING DEFINITIONS SHALL APPLY:  (A) "PERSONAL INFORMATION"
 INCLUDES, BUT IS NOT LIMITED TO, NAME OR ANY PART  THEREOF,  ADDRESS  OR
 ANY  PART  THEREOF,  AGE,  NAMES  OF  FAMILY  MEMBERS,  MARITAL  STATUS,
 RELATIONSHIP TO DEFENDANT, RACE OR ETHNIC BACKGROUND, EMPLOYER,  SCHOOL,
 OR  URLS, SOCIAL MEDIA ACCOUNT USERNAMES, AND SCREENSHOTS RELATED TO THE
 CAUSE OF ACTION;
   (B) "ACTUAL DAMAGES" INCLUDES, BUT IS NOT LIMITED TO, PAIN AND SUFFER-
 ING, EMOTIONAL DISTRESS, ECONOMIC DAMAGES, AND LOST EARNINGS.
   6. A CAUSE OF ACTION BROUGHT UNDER THIS SECTION MAY BE BROUGHT NO MORE
 THAN FIVE YEARS AFTER THE LAST DISSEMINATION OR INCIDENT.
   7. THE ACTOR'S CLAIM THAT THE DEPICTED PERSON IS A PUBLIC FIGURE SHALL
 NOT BE SUFFICIENT TO ESTABLISH THE AFFIRMATIVE DEFENSE THAT DISTRIBUTION
 CONSTITUTES A MATTER OF PUBLIC CONCERN.
   8. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO REQUIRE THAT A CRIMI-
 NAL CHARGE BE BROUGHT OR A CRIMINAL CONVICTION BE OBTAINED AS  A  CONDI-
 TION  OF  BRINGING A CIVIL CAUSE OF ACTION OR RECEIVING A CIVIL JUDGMENT
 PURSUANT TO THIS SECTION OR BE CONSTRUED TO  REQUIRE  THAT  ANY  OF  THE
 RULES  GOVERNING  A  CRIMINAL PROCEEDING BE APPLICABLE TO ANY SUCH CIVIL
 ACTION.
   9. THIS SECTION SHALL NOT APPLY TO PROVIDERS OF AN INTERACTIVE COMPUT-
 ER SERVICE, AS DEFINED IN 47 U.S.C. § 230(F),  FOR  IMAGES  PROVIDED  BY
 ANOTHER PERSON.
   § 2. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law.