S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9816
 
                           I N  A S S E M B L Y
 
                               April 9, 2024
                                ___________
 
 Introduced  by M. of A. BORES -- read once and referred to the Committee
   on Election Law
 
 AN ACT to amend the election law, in relation to proceedings to prohibit
   the use of materially deceptive media in political communications
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section  1.   Short title. This act shall be known and may be cited as
 the "New York false AI representations act (New York FAIR Act)".
   § 2.  The election law is amended by adding a new  section  16-119  to
 read as follows:
   §  16-119.    MATERIALLY  DECEPTIVE  MEDIA;  PROCEEDINGS.  1.  FOR THE
 PURPOSES OF THIS SECTION, THE TERM "MATERIALLY  DECEPTIVE  MEDIA"  MEANS
 ANY  IMAGE,  AUDIO  OR  VIDEO  OF  A  CANDIDATE'S APPEARANCE, SPEECH, OR
 CONDUCT THAT HAS  BEEN  INTENTIONALLY  MANIPULATED,  USED  FOR  CAMPAIGN
 PURPOSES IN A MANNER WHICH:
   (A)  FALSELY  DEPICTS  AN  INDIVIDUAL ENGAGING IN SPEECH OR CONDUCT IN
 WHICH THE DEPICTED INDIVIDUAL DID NOT IN FACT ENGAGE;
   (B) A REASONABLE VIEWER OR LISTENER WOULD INCORRECTLY BELIEVE THAT THE
 DEPICTED INDIVIDUAL ENGAGED IN THE SPEECH OR CONDUCT DEPICTED; AND
   (C) IS CREATED BY OR WITH A MACHINE-BASED SYSTEM THAT, FOR EXPLICIT OR
 IMPLICIT OBJECTIVES, INFERS, FROM THE INPUT IT RECEIVES, HOW TO GENERATE
 OUTPUTS SUCH AS PREDICTIONS, CONTENT, RECOMMENDATIONS, OR DECISIONS THAT
 CAN INFLUENCE PHYSICAL OR VIRTUAL ENVIRONMENTS.
   2. ANY CANDIDATE DEPICTED IN MATERIALLY DECEPTIVE MEDIA SHALL  HAVE  A
 CAUSE  OF  ACTION  AGAINST SUCH INDIVIDUAL OR ENTITY WHO DISSEMINATED OR
 PUBLISHED SUCH MEDIA WITHOUT THE CONSENT OF THE PERSON DEPICTED AND  WHO
 KNEW OR SHOULD HAVE KNOWN THAT IT WAS MATERIALLY DECEPTIVE.
   3.  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 ATTORNEYS' FEES.
   4. A CAUSE OF ACTION OR SPECIAL PROCEEDING UNDER THIS SECTION SHALL BE
 COMMENCED WITHIN THREE YEARS AFTER THE DISSEMINATION OR  PUBLICATION  OF
 SUCH MEDIA.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

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   5. IN ANY ACTION COMMENCED UNDER THIS SECTION, THE PLAINTIFF BEARS THE
 BURDEN  OF  ESTABLISHING  THE USE OF MATERIALLY DECEPTIVE MEDIA BY CLEAR
 AND CONVINCING EVIDENCE.
   6.  BECAUSE OF THE FREQUENCY OF ELECTIONS, THE SEVERE CONSEQUENCES AND
 IRREPARABLE  HARM  OF  HOLDING  ELECTIONS  UNDER  DECEPTIVE  CONDITIONS,
 ACTIONS  BROUGHT  PURSUANT TO THIS SECTION SHALL BE SUBJECT TO EXPEDITED
 PRETRIAL AND TRIAL PROCEEDINGS AND RECEIVE AN AUTOMATIC CALENDAR PREFER-
 ENCE. IN ANY ACTION ALLEGING A VIOLATION OF  THIS  SECTION  IN  WHICH  A
 PLAINTIFF  PARTY  SEEKS  PRELIMINARY  RELIEF WITH RESPECT TO AN UPCOMING
 ELECTION, THE COURT SHALL GRANT RELIEF IF IT DETERMINES THAT:
   (A) PLAINTIFFS ARE MORE LIKELY THAN NOT TO SUCCEED ON THE MERITS; AND
   (B) IT IS POSSIBLE TO  IMPLEMENT  AN  APPROPRIATE  REMEDY  THAT  WOULD
 RESOLVE THE ALLEGED VIOLATION IN THE UPCOMING ELECTION.
   7.  IT  SHALL  BE  AN AFFIRMATIVE DEFENSE FOR ANY ACTION BROUGHT UNDER
 THIS SECTION THAT THE MATERIALLY DECEPTIVE MEDIA INCLUDES  A  DISCLOSURE
 STATING,  "THIS (IMAGE/VIDEO/AUDIO) HAS BEEN MANIPULATED" IN THE FOLLOW-
 ING MANNER:
   (A) FOR VISUAL MEDIA, THE TEXT OF THE DISCLOSURE MUST  APPEAR  IN  THE
 SAME LANGUAGE AND IN A SIZE EASILY READABLE BY THE AVERAGE VIEWER AND NO
 SMALLER THAN THE LARGEST FONT SIZE OF OTHER TEXT APPEARING IN THE VISUAL
 MEDIA.  IF THE VISUAL MEDIA DOES NOT INCLUDE ANY OTHER TEXT, THE DISCLO-
 SURE MUST APPEAR IN A SIZE THAT IS EASILY READABLE BY THE AVERAGE  VIEW-
 ER. FOR VISUAL MEDIA THAT IS A VIDEO, THE DISCLOSURE MUST APPEAR FOR THE
 DURATION OF THE VIDEO IN THE SAME LANGUAGE USED IN THE VIDEO; OR
   (B)  IF  THE MEDIA CONSISTS OF AUDIO ONLY, THE DISCLOSURE MUST BE READ
 IN A CLEARLY SPOKEN MANNER AND IN A PITCH THAT CAN BE  EASILY  HEARD  BY
 THE  AVERAGE  LISTENER, AT THE BEGINNING OF THE AUDIO, AT THE END OF THE
 AUDIO, AND, IF THE AUDIO IS GREATER THAN TWO MINUTES IN  LENGTH,  INTER-
 SPERSED  WITHIN THE AUDIO AT INTERVALS OF NOT MORE THAN TWO MINUTES EACH
 AND IN THE SAME LANGUAGE AS THE REST OF THE AUDIO.
   8. (A) THIS SECTION DOES NOT APPLY TO A RADIO OR TELEVISION BROADCAST-
 ING  STATION,  INCLUDING  A  CABLE  OR  SATELLITE  TELEVISION  OPERATOR,
 PROGRAMMER,  OR  PRODUCER,  THAT  BROADCASTS  A DECEPTIVE AND FRAUDULENT
 DEEPFAKE PROHIBITED BY THIS SECTION AS PART OF  A  BONA  FIDE  NEWSCAST,
 NEWS  INTERVIEW,  NEWS DOCUMENTARY, OR ON-THE-SPOT COVERAGE OF BONA FIDE
 NEWS EVENTS, IF THE BROADCAST CLEARLY ACKNOWLEDGES THROUGH CONTENT OR  A
 DISCLOSURE,  IN A MANNER THAT CAN BE EASILY HEARD OR READ BY THE AVERAGE
 LISTENER OR VIEWER, THE MATERIALLY DECEPTIVE AUDIO OR VISUAL MEDIA  DOES
 NOT ACCURATELY REPRESENT THE SPEECH OR CONDUCT OF THE CANDIDATE.
   (B)  THIS SECTION DOES NOT APPLY TO A RADIO OR TELEVISION BROADCASTING
 STATION, INCLUDING A CABLE OR SATELLITE TELEVISION OPERATOR, PROGRAMMER,
 OR PRODUCER, WHEN IT IS PAID TO BROADCAST  A  DECEPTIVE  AND  FRAUDULENT
 DEEPFAKE  AND  HAS  MADE  A  GOOD  FAITH  EFFORT  TO  ESTABLISH THAT THE
 DEPICTION IS NOT MATERIALLY DECEPTIVE MEDIA.
   (C) THIS SECTION DOES NOT APPLY TO AN INTERNET WEBSITE, OR A REGULARLY
 PUBLISHED NEWSPAPER, MAGAZINE, OR OTHER  PERIODICAL  OF  GENERAL  CIRCU-
 LATION,  INCLUDING AN INTERNET OR ELECTRONIC PUBLICATION, THAT ROUTINELY
 CARRIES NEWS AND COMMENTARY OF  GENERAL  INTEREST,  AND  THAT  PUBLISHES
 MATERIALLY  DECEPTIVE  AUDIO OR VISUAL MEDIA PROHIBITED BY THIS SECTION,
 IF THE PUBLICATION CLEARLY STATES THAT THE MATERIALLY DECEPTIVE AUDIO OR
 VISUAL MEDIA DOES NOT ACCURATELY REPRESENT THE SPEECH OR CONDUCT OF  THE
 CANDIDATE.
   (D) THIS SECTION DOES NOT APPLY TO MATERIALLY DECEPTIVE AUDIO OR VISU-
 AL MEDIA THAT CONSTITUTES SATIRE OR PARODY.
   9. 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
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 SERVICE FOR CONTENT PROVIDED BY ANOTHER INFORMATION CONTENT PROVIDER, AS
 SUCH TERMS ARE DEFINED IN 47 U.S.C. § 230.
   § 3. 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.
   § 4. This act shall take effect immediately.