S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                 10217--A
 
                           I N  A S S E M B L Y
 
                                May 6, 2022
                                ___________
 
 Introduced  by  COMMITTEE  ON  RULES -- (at request of M. of A. Otis) --
   read once and referred to the Committee on Science and  Technology  --
   committee  discharged,  bill amended, ordered reprinted as amended and
   recommitted to said committee
 
 AN ACT to amend the penal law, in relation to establishing the crime  of
   aggravated harassment by means of electronic or digital communication;
   and  to  amend  the  civil  rights law, in relation to providing for a
   private right of action for the unlawful dissemination or  publication
   of deep fakes
 
   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 a new section 240.78  to
 read as follows:
 §  240.78 AGGRAVATED HARASSMENT BY MEANS OF ELECTRONIC OR DIGITAL COMMU-
            NICATION.
   1. A PERSON IS GUILTY OF AGGRAVATED HARASSMENT BY MEANS OF  ELECTRONIC
 OR DIGITAL COMMUNICATION WHEN, WITH THE INTENT TO HARASS, ANNOY, THREAT-
 EN  OR  ALARM ANOTHER PERSON, HE OR SHE PRODUCES, DISTRIBUTES, PUBLISHES
 OR BROADCASTS MATERIAL THAT CONTAINS A PICTURE, PHOTOGRAPH OR IMAGE OF A
 PERSON OR PERSONS OR A DEEP FAKE INTO WHICH THE IMAGE OF ANOTHER  PERSON
 OR PERSONS IS SUPERIMPOSED AS A DEEP FAKE.
   2.  FOR  PURPOSES OF THIS SECTION, "DEEP FAKE" MEANS A DIGITIZED IMAGE
 THAT IS ALTERED TO INCORPORATE A PERSON'S  FACE  OR  THEIR  IDENTIFIABLE
 BODY  PART  ONTO  SUCH  IMAGE,  AND  SUCH IMAGE IS ANY PRINTED MATERIAL,
 ADVERTISEMENT,  MOVIE,  VIDEO,  COMMUNICATION  OR  COMPUTER  IMAGE  THAT
 DEPICTS  A  PORNOGRAPHIC  OR LEWD SEX ACT AS DEFINED PURSUANT TO SECTION
 245.00 OR 130.00 OF THIS PART, OR GRAPHIC VIOLENCE,  THAT  IS  PUBLISHED
 WITHOUT THE EXPLICIT WRITTEN PERMISSION OF THE INDIVIDUAL OR INDIVIDUALS
 DEPICTED,  AND  FOR  NO  OTHER  LEGITIMATE PURPOSE OTHER THAN TO HARASS,
 ANNOY, THREATEN OR ALARM ANOTHER PERSON.
   AGGRAVATED HARASSMENT BY MEANS OF ELECTRONIC OR DIGITAL  COMMUNICATION
 SHALL BE A CLASS A MISDEMEANOR.
   §  2. Section 52-b of the civil rights law, as added by chapter 109 of
 the laws of 2019, is amended to read as follows:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD11427-06-2
 A. 10217--A                         2
 
   § 52-b. Private right of action for unlawful dissemination or publica-
 tion of an intimate image OR DEEP FAKE.   1. Any person  depicted  in  a
 still or video image, regardless of whether or not the original still or
 video  image  was  consensually  obtained,  shall have a cause of action
 against  an  individual  who,  for the purpose of harassing, annoying or
 alarming such  person,  disseminated  or  published,  or  threatened  to
 disseminate  or  publish, such still or video image, where such image OR
 DEEP FAKE:
   a. WAS A DEEP FAKE OR was taken when  such  person  had  a  reasonable
 expectation that [the] THEIR image would remain private; and
   b.  depicts  (i) an unclothed or exposed intimate part of such person;
 or (ii) such person engaging in sexual conduct, as defined  in  subdivi-
 sion ten of section 130.00 of the penal law, with another person; and
   c.  was disseminated or published, or threatened to be disseminated or
 published, without the consent of such person.
   2. In any  action  commenced  pursuant  to  subdivision  one  of  this
 section,  the  finder  of  fact, in its discretion, may award injunctive
 relief, punitive damages,  compensatory  damages  and  reasonable  court
 costs and attorney's fees.
   3. This section shall not apply to the following:
   a. the reporting of unlawful conduct;
   b. dissemination or publication of an intimate still [or], video image
 OR DEEP FAKE made during lawful and common practices of law enforcement,
 legal proceedings or medical treatment;
   c.  images  involving  voluntary  exposure  in  a public or commercial
 setting; or
   d. dissemination or publication of an intimate still [or], video image
 OR DEEP FAKE made for a legitimate public purpose.
   4. Any person depicted in a still or video image  OR  DEEP  FAKE  that
 depicts  an  unclothed  or exposed intimate part of such person, or such
 person engaging in sexual conduct  as  defined  in  subdivision  ten  of
 section  130.00  of  the penal law with another person, which is dissem-
 inated or published without the consent of such person  and  where  such
 person had a reasonable expectation that the image would remain private,
 may  maintain  an  action  or  special  proceeding  for a court order to
 require any website that  is  subject  to  personal  jurisdiction  under
 subdivision  five of this section to permanently remove such still [or],
 video image OR DEEP FAKE; any such court order granted pursuant to  this
 subdivision  may  direct  removal  only as to images that are reasonably
 within such website's control.
   5. a. Any website that hosts or transmits a still or  video  image  OR
 DEEP FAKE, viewable in this state, taken OR PRODUCED under circumstances
 where  the  person  depicted had a reasonable expectation that the image
 would remain private, which depicts:
   (i) an unclothed or exposed  intimate  part,  as  defined  in  section
 245.15 of the penal law, of a resident of this state; or
   (ii) a resident of this state engaging in sexual conduct as defined in
 subdivision  ten of section 130.00 of the penal law with another person;
 and
   b. Such still [or], video image OR DEEP FAKE is hosted or  transmitted
 without  the consent of such resident of this state, shall be subject to
 personal jurisdiction in a civil action in this  state  to  the  maximum
 extent permitted under the United States constitution and federal law.
   6. A cause of action or special proceeding under this section shall be
 commenced the later of either:
   a. three years after the dissemination or publication of an image; or
 A. 10217--A                         3
 
   b.  one  year  from  the date a person discovers, or reasonably should
 have discovered, the dissemination or publication of such image.
   6-A.  FOR PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE
 FOLLOWING MEANINGS:
   A. "INDIVIDUAL" MEANS A PERSON, CORPORATION,  BUSINESS  ENTITY,  FIRM,
 ASSOCIATION,  COMMITTEE  OR  ORGANIZATION CONDUCTING BUSINESS WITHIN THE
 STATE OF NEW YORK.
   B. "DEEP FAKE" MEANS A DIGITIZED IMAGE THAT IS ALTERED TO  INCORPORATE
 A  PERSON'S  FACE  OR  THEIR IDENTIFIABLE BODY PART ONTO SUCH IMAGE, AND
 SUCH IMAGE IS ANY PRINTED MATERIAL, ADVERTISEMENT, MOVIE, VIDEO,  COMMU-
 NICATION  OR  COMPUTER IMAGE THAT DEPICTS A PORNOGRAPHIC OR LEWD SEX ACT
 AS DEFINED PURSUANT TO SECTION 245.00 OR 130.00 OF  THE  PENAL  LAW,  OR
 GRAPHIC VIOLENCE, THAT IS PUBLISHED WITHOUT THE EXPLICIT WRITTEN PERMIS-
 SION OF THE INDIVIDUAL OR INDIVIDUALS DEPICTED, AND FOR NO OTHER LEGITI-
 MATE  PURPOSE  OTHER  THAN  TO  HARASS, ANNOY, THREATEN OR ALARM ANOTHER
 PERSON.
   7. Nothing herein shall be read to require a prior criminal complaint,
 prosecution or conviction to establish the  elements  of  the  cause  of
 action provided for by this section.
   8.  The  provisions  of this section are in addition to, but shall not
 supersede, any other rights or remedies available in law or equity.
   9. If any provision of this section or its application to  any  person
 or  circumstance  is held invalid, the invalidity shall not affect other
 provisions or applications of this section which  can  be  given  effect
 without  the  invalid  provision  or  application,  and  to this end the
 provisions of this section are severable.
   10. Nothing in this  section  shall  be  construed  to  limit,  or  to
 enlarge,  the  protections that 47 U.S.C § 230 confers on an interactive
 computer service for content provided  by  another  information  content
 provider, as such terms are defined in 47 U.S.C. § 230.
   §  3. Section 52-c of the civil rights law, as added by chapter 304 of
 the laws of 2020, is amended to read as follows:
   § 52-c. Private right of action for unlawful dissemination or publica-
 tion of a sexually explicit depiction OR DEEP FAKE of an individual.  1.
 For the purposes of this section:
   a.  "depicted individual" means an individual who appears, as a result
 of digitization, to be  giving  a  performance  they  did  not  actually
 perform or to be performing in a performance that was actually performed
 by  the  depicted  individual  but  was  subsequently  altered  to be in
 violation of this section.
   b. "digitization" means to realistically depict the nude body parts of
 another human being as the nude body parts of the  depicted  individual,
 computer-generated  nude  body  parts  as  the  nude  body  parts of the
 depicted individual  or  the  depicted  individual  engaging  in  sexual
 conduct,  as  defined  in subdivision ten of section 130.00 of the penal
 law, in which the depicted individual did not engage.
   c. "individual" means a natural person.
   d. "person" means a human being or legal entity.
   e. "sexually explicit material" means any portion of an  audio  visual
 work, OR DEEP FAKE, that shows the depicted individual performing in the
 nude,  meaning with an unclothed or exposed intimate part, as defined in
 section 245.15 of the penal law, or appearing to  engage  in,  or  being
 subjected  to,  sexual conduct, as defined in subdivision ten of section
 130.00 of the penal law.
   F. "DEEP FAKE" MEANS A DIGITIZED IMAGE THAT IS ALTERED TO  INCORPORATE
 AN  INDIVIDUAL'S  FACE  OR THEIR IDENTIFIABLE BODY PART ONTO SUCH IMAGE,
 A. 10217--A                         4
 
 AND SUCH IMAGE IS ANY PRINTED  MATERIAL,  ADVERTISEMENT,  MOVIE,  VIDEO,
 COMMUNICATION  OR COMPUTER IMAGE THAT DEPICTS A PORNOGRAPHIC OR LEWD SEX
 ACT AS DEFINED PURSUANT TO SECTION 245.00 OR 130.00 OF THE PENAL LAW, OR
 GRAPHIC VIOLENCE, THAT IS PUBLISHED WITHOUT THE EXPLICIT WRITTEN PERMIS-
 SION OF THE INDIVIDUAL OR INDIVIDUALS DEPICTED, AND FOR NO OTHER LEGITI-
 MATE  PURPOSE  OTHER  THAN  TO  HARASS, ANNOY, THREATEN OR ALARM ANOTHER
 PERSON.
   2. a. A depicted individual shall have a cause  of  action  against  a
 person  who,  discloses,  disseminates,  PRODUCES  or publishes sexually
 explicit material OR A DEEP FAKE related to the depicted individual, and
 the person knows or reasonably should have known the depicted individual
 in that material did not consent to its  creation,  disclosure,  dissem-
 ination, PRODUCTION or publication.
   b.  It  shall  not  be  a defense to an action under this section that
 there is a disclaimer in the sexually explicit  material  that  communi-
 cates  that  the  inclusion  of  the depicted individual in the sexually
 explicit material was unauthorized or that the depicted  individual  did
 not participate in the creation or development of the material.
   3.  a. A depicted individual may only consent to the creation, disclo-
 sure, dissemination, PRODUCTION, or  publication  of  sexually  explicit
 material  OR  A DEEP FAKE by knowingly and voluntarily signing an agree-
 ment written in plain language that includes a  general  description  of
 the sexually explicit material and the audiovisual work in which it will
 be incorporated.
   b.  A  depicted  individual  may rescind consent by delivering written
 notice within three business days from the date consent was given to the
 person in whose favor consent was made,  unless  one  of  the  following
 requirements is satisfied:
   i.  the  depicted  individual is given at least three business days to
 review the terms of the agreement before signing it; or
   ii. if the depicted individual is represented,  the  attorney,  talent
 agent, or personal manager authorized to represent the depicted individ-
 ual provides additional written approval of the signed agreement.
   4. a. A person is not liable under this section if:
   i.  the  person  discloses,  disseminates  or  publishes  the sexually
 explicit material in the course of reporting unlawful activity, exercis-
 ing the person's law enforcement duties, or hearings,  trials  or  other
 legal proceedings; or
   ii.  the  sexually  explicit material is a matter of legitimate public
 concern, a work of political or newsworthy value  or  similar  work,  or
 commentary,  criticism  or disclosure that is otherwise protected by the
 constitution of this state or the United States; provided that  sexually
 explicit  material  shall  not  be considered of newsworthy value solely
 because the depicted individual is a public figure.
   5. In any action commenced pursuant to this  section,  the  finder  of
 fact,  in its discretion, may award injunctive relief, punitive damages,
 compensatory damages, and reasonable court costs and attorney's fees.
   6. A cause of action or special proceeding under this section shall be
 commenced the later of either:
   a. three years after the  dissemination  or  publication  of  sexually
 explicit material; or
   b.  one  year  from  the date a person discovers, or reasonably should
 have discovered, the  dissemination  or  publication  of  such  sexually
 explicit material.
 A. 10217--A                         5
 
   7.  Nothing  in this section shall be read to require a prior criminal
 complaint, prosecution or conviction to establish the  elements  of  the
 cause of action provided for in this section.
   8.  The provisions of this section including the remedies are in addi-
 tion to, and shall not supersede, any other rights or remedies available
 in law or equity.
   9. If any provision of this section or its application to  any  person
 or  circumstance  is held invalid, the invalidity shall not affect other
 provisions or applications of this section which  can  be  given  effect
 without  the  invalid  provision  or  application,  and  to this end the
 provisions of this section are severable.
   10. Nothing in this  section  shall  be  construed  to  limit,  or  to
 enlarge,  the protections that 47 U.S.C. § 230 confers on an interactive
 computer service for content provided  by  another  information  content
 provider, as such terms are defined in 47 U.S.C. § 230.
   § 4. This act shall take effect immediately.