S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  2725--A
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             January 17, 2017
                                ___________
 
 Introduced by Sens. GRIFFO, DeFRANCISCO -- read twice and ordered print-
   ed,  and  when  printed  to  be committed to the Committee 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 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.
   (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:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01700-03-7
              

 S. 2725--A                          2
 
   (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
 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

 S. 2725--A                          3
 
 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.