NY State Senate Bill 2023-S8510A

Current Bill Status - In Senate Committee Codes 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
May 14, 2024	print number 8510a
May 14, 2024	amend and recommit to codes
Feb 07, 2024	referred to codes

Bill Amendments

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A (Active)

co-Sponsors

2023-S8510 - Details

See Assembly Version of this Bill:: A7519
Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Add Art 246 §§246.00 - 246.30, amd §245.15, Pen L; amd §§30.10, 510.10, 530.20 & 530.40, CP L; amd §168-a, Cor L

2023-S8510 - Summary

Prohibits accessing or distributing certain sexually explicit depictions of children; prohibits consent to such depictions by anyone under eighteen years of age; makes such crimes eligible for bail; includes certain crimes as sex offenses.

2023-S8510 - Sponsor Memo

                                 
BILL NUMBER: S8510

SPONSOR: FERNANDEZ
 
TITLE OF BILL:

An act to amend the penal law, the criminal procedure law and the
correction law, in relation to establishing offenses involving sexually
explicit digital alterations

 
PURPOSE OR GENERAL IDEA OF BILL:

Establishes the crimes of unlawful publication of a sexually explicit
depiction of an individual, unlawful dissemination of a sexually explic-
it depiction of an individual, unlawful distribution of a sexually
explicit depiction of a child, and unlawful access of a sexually explic-
it depiction of a child. The proposal addresses the threat of digitized
sexually explicit material that is created and shared to circumvent
child pornography laws and more generally used to harm the depicted
individuals.

 
SUMMARY OF PROVISIONS:

Section one of the bill contains the short title. This act shall be
known as the "digital alternations protections act".

Section two defines the tern-is used in the article for the crimes of
unlawful publication of a sexually explicit depiction of an individual,
unlawful dissemination of a sexually explicit depiction of an individ-
ual, unlawful distribution of a sexually explicit depiction of a child,
and unlawful access of a sexually explicit depiction of a child. This
section incorporates by reference the terms "disseminate" and "publish"
as they are used in Penal Law § 245.15 (unlawful dissemination or publi-
cation of an intimate image), and "sexual conduct" as it is used in
Penal Law Article 263 (promotion and possession of a sexual performance
of a child). The section also defines an identifiable person, an indi-
vidual, a depicted individual, digitization, sexually explicit material,
and a sexually explicit depiction. This section creates the crimes of
unlawful publication of a sexually explicit depiction of an individual
and unlawful dissemination of a sexually explicit depiction of an indi-
vidual. A person is guilty of the unlawful publication of a sexually
explicit depiction of an individual when, with the intent to sexually
gratify that person or another person or with the intent to cause harm
to the reputation or emotional, financial or physical welfare of another
person, he or she publishes sexually explicit material that includes the
depicted individual, and he or she knows or reasonably should have known
that the depicted individual did not consent to its creation or its
publication.  Unlawful publication of a sexually explicit depiction of
an individual is a class A misdemeanor. Unlawful dissemination of a
sexually explicit depiction of an individual, which is a class B misde-
meanor, requires the intent to cause harm to the reputation or
emotional, financial, or physical welfare of another person and occurs
when a person disseminates sexually explicit material that includes a
depicted individual that he or she knows or reasonably should know did
not consent to its creation or dissemination. This section of the bill
also creates the crime of unlawful distribution of a sexually explicit
depiction of a child in the first degree. A person commits this crime
when the person, knowing the character and content thereof, creates and
either disseminates or publishes sexually explicit material that
includes the depicted individual and that individual is less than seven-
teen years old. Unlawful distribution of a sexually explicit depiction
of a child in the first degree is a class D felony. The section imposes
strict liability on the creator of a sexually explicit depiction because
that person created and shared the depiction. This section of the bill
also creates the crime of unlawful distribution of a sexually explicit
depiction of a child in the second degree. A person commits this crime
when the person, knowing the character and content thereof, disseminates
or publishes sexually explicit material that includes the depicted indi-
vidual, and knows or reasonably should have known that the depicted
individual is less than seventeen years of age.  Unlawful distribution
of a sexually explicit depiction of a child in the second degree is a
class E felony. This section of the bill also creates the crime of
unlawful access of a sexually explicit depiction of a child. A person is
guilty of this crime when he or she, knowing the character and content
thereof, knowingly accesses, with intent to sexually gratify a person
and with intent to view, any sexually explicit material that includes
sexual conduct by a child less than sixteen years of age. Unlawful
access of a sexually explicit depiction of a child is a class E felony.
Additionally, this section forecloses the use of a disclaimer to circum-
vent the publication and dissemination of sexually explicit depictions
of an individual and establishes an affirmative defense to unlawful
publication and dissemination of a sexually explicit depiction of indi-
vidual where a person over the age of eighteen provides written consent
to the creation of the sexually explicit material. The section permits
the individual to rescind consent upon written notice to the person in
whose favor consent was granted. Further, this section prohibits anyone
under the age of eighteen from providing consent, and states that any
purported consent from an individual who is less than eighteen years old
is void and invalid and carves out some exceptions for reporting unlaw-
ful conduct, creation of the materials for law enforcement purposes, and
the creation of sexually explicit depictions for a legitimate public
purpose. This section provides that nothing in the article should be
construed to limit or enlarge protections provided by 47 U.S.C. § 230 or
interfere with any rights established by Civil Rights Law § 52-c.

Sections three and four establishes the statute of limitation for the
article and amends C.P.L.§ 30.10(3)(f) to include some of the enumerated
crimes.

Sections five, six and seven make corresponding changes to the criminal
procedure law by specifying that the new felony level offenses are qual-
ified offenses for purposes of securing orders.

Section eight makes corresponding changes to the corrections law by
specifying that the new crimes against children are qualifying offenses
for purposes of the sex offender registry.

Section nine is the severability clause.

Section ten provides the effective date.

 
JUSTIFICATION:

The state has a compelling interest in safeguarding the physical,
psychological, and reputational well-being of its minors. To that end,
Article 263 was enacted to prohibit the possession and distribution of
child pornography. The law was later amended to close a loophole that
allowed for the viewing, but not downloading, of child pornography on a
computer. With the advent of newer technology, child pornographers are
able to circumvent existing laws by taking the identifiable heads and
body parts of children and digitally placing them onto the bodies of
adults engaging in sexual conduct, creating both still images and video
images. Indeed, bad actors can use newer artificial intelligence appli-
cations to create incredibly detailed images and videos that are indis-
tinguishable from real life.  In popular parlance, these digitally
manipulated images are known as morphed images or, increasingly, as
deepfaked images. These digitally manipulated images give rise to the
same reputational harm caused by conventional forms of child pornogra-
phy, but they are not criminally prohibited in New York. In 2003,
Congress, recognizing the burgeoning problem, modified federal law to
include such altered images in its definition of child pornography. In
2019 Virginia added deepfaked images to its statute that criminalizes
the unlawful dissemination or sale of images of another person. New York
has yet to close this loophole.

Created using artificial intelligence-assisted technology, deepfaked
images are digital images or video recordings convincingly altered and
manipulated to misrepresent individuals as saying or doing something
that they had not actually said or done. Because the images appear genu-
ine, they can sully reputations, destroy educational and employment
opportunities, ruin personal relationships, and invite unwanted requests
for sexual services. Deepfaked child pornography is especially perni-
cious. The images often combine an innocent photograph of a child,
pulled by a pedophile from a parent's social media or blog, with a sexu-
al or nude picture of an adult, creating a realistic depiction that can,
once circulated, cause lasting harm.  There is, moreover, no limit to
the number of deepfaked child images that a pornographer can generate.
In one recent case (United States v. Mecham, 950 F.3d 267  
SH CIR.
2020), a Texas man was convicted of possessing 31,562 images and 1,741
videos of child pornography, all of them "morphed" to include the faces
of the man's grandchildren, ranging in age from four- to sixteenyears-
old. One of the videos showed his granddaughter's face on an adult
female having sex, and the defendant superimposed his face on the male
in the video. Victims may understandably become traumatized when they
discover that cherished childhood memories have been transformed into
child pornography.

Tragically, pedophiles who traffic in deepfaked imagery are able to do
so in the absence of appropriate laws. While federal courts have upheld
child pornography convictions based on the federal statute, state
appeals courts have dismissed prosecutions in Florida, California, and
New Hampshire because their laws do not extend to images that graft
children's faces onto images of adult sex acts. The Florida court was
clear in its reasoning. Its statute, which is similar to New York's,
"requires that the depicted sexual conduct be that of a child." Parker
v. State, 81 So.3d 451,452 (Fla. Dist. Ct.  App. 2011). Nor is a techno-
logical solution imminent. In what some liken to a game of whack-a-
mole, the research community is developing improved methods of face
manipulation detection as powerful synthetic face generators produce
even more realistic images. C. Rathgeb et al. (eds.), Handbook of
Digital Face Manipulation and Detection, Advances in Computer Vision and
Pattern Recognition (2022).

Deepfaked images are being weaponized against the innocent and unsus-
pecting and are increasingly commonplace. Countless still images have
been digitally manipulated, many for legitimate purposes but others for
nefarious reasons. Deeptrace Technologies, a cybersecurity company,
reported in 2019 that the number of deepfake videos is growing rapidly
online, doubling in just seven months to 14,678, of which ninety-six
percent were non-consensual pornography. According to the company, the
four most popular deepfake websites had by then attracted more than 134
million video views. Henry Ajder, et al., Deeptrace, The State of Deep-
fakes, Landscape, Threats, And Impact, September 2019. With technolog-
ical advancements, morphed and deepfaked imagery has become almost
indistinguishable from actual images, and lay observers are unable to
determine what is real and what is doctored.

Recently, approximately thirteen women alerted Nassau County police in
2021 that they had discovered images of themselves on a pornographic
website. The women reported that dozens of images, taken when they were
in middle school and high school, had been reposted on the website from
their own social media platforms and altered to depict them as engaging
in sexual conduct. These new digitally manipulated images depict minors
engaging in sexual conduct. For many of the women, their faces had been
superimposed on separate images of others engaged in sexual conduct. The
posted images were accompanied by the women's actual names, addresses,
and telephone numbers. One victim was as young as twelve years old in
the original photographs that had been altered. As a result of their
images being posted, some of these women had been subjected to unwanted
requests for sexual services.

Nassau County police thereafter charged a local man with posting the
images and a grand jury indicted him for crimes including stalking,
aggravated harassment, and promoting child pornography, relating to his
alleged dissemination of an unaltered image of an actual child.  Many of
the thirteen women had attended middle school and high school with the
man accused of creating digitally altered images, and he allegedly
targeted these women because of perceived slights he suffered. But
prosecutors could not charge the man with publishing and distributing
the bogus images of the women because New York law, unlike federal law,
does not clearly apply to such images. This bill would close the gap and
criminalize the distribution or access of digitally manipulated child
pornography as well as punish the unlawful publication and dissemination
of such sexual images of any person.

In 2021, New York created a civil private right of action over the
"unlawful dissemination or publication of a sexually explicit depiction
of an individual." Civ. Rights Law § 52-c, Criminalization of this
conduct is necessary because the threat of civil litigation does not
necessarily deter those who create and disseminate such images. Further-
more, a civil case is emotionally exhausting and prohibitively expensive
for victims and may take years before going to trial. Moreover, the
websites that distribute such imagery receive broad immunity for civil
liability under federal law through the Communications Decency Act.
Criminalizing the creation and dissemination of deepfaked images may
deter those who use increasingly available technology to create and
distribute images that victimize innocent women and children.

 
PRIOR LEGISLATIVE HISTORY:

New Bill.

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately.

2023-S8510 - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8510
 
                             I N  S E N A T E
 
                             February 7, 2024
                                ___________
 
 Introduced by Sen. FERNANDEZ -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN  ACT  to  amend  the  penal  law,  the criminal procedure law and the
   correction law, in relation to establishing offenses involving sexual-
   ly explicit digital alterations
 
   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 "digital alterations protections act".
   § 2. The penal law is amended by adding a new article 246 to  read  as
 follows:
 
                                ARTICLE 246
         OFFENSES INVOLVING SEXUALLY EXPLICIT DIGITAL ALTERATIONS
 
 SECTION 246.00 DEFINITIONS.
         246.05 UNLAWFUL  DISSEMINATION  OF A SEXUALLY EXPLICIT DEPICTION
                  OF AN INDIVIDUAL.
         246.10 UNLAWFUL PUBLICATION OF A SEXUALLY EXPLICIT DEPICTION  OF
                  AN INDIVIDUAL.
         246.15 UNLAWFUL  ACCESS  OF  A  SEXUALLY EXPLICIT DEPICTION OF A
                  CHILD.
         246.20 UNLAWFUL DISTRIBUTION OF A SEXUALLY EXPLICIT DEPICTION OF
                  A CHILD IN THE SECOND DEGREE.
         246.25 UNLAWFUL DISTRIBUTION OF A SEXUALLY EXPLICIT DEPICTION OF
                  A CHILD IN THE FIRST DEGREE.
         246.30 AFFIRMATIVE DEFENSE.
         246.35 CONSENT.
         246.40 APPLICATION OF ARTICLE.
 § 246.00 DEFINITIONS.
   AS USED IN THIS ARTICLE, THE FOLLOWING DEFINITIONS SHALL APPLY:
   1. "DISSEMINATE" AND "PUBLISH" SHALL HAVE THE SAME  MEANINGS  AS  SUCH
 TERMS ARE DEFINED IN SECTION 250.40 OF THIS TITLE.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11051-04-4

 S. 8510                             2
 
   2.  "CREATE"  MEANS TO DESIGN, DEVELOP, DEVISE, GENERATE, ISSUE, MAKE,
 MANUFACTURE, PRODUCE, OR TRANSMUTE.
   3.  "SEXUALLY EXPLICIT DEPICTION" MEANS ANY WORK CREATED THROUGH SEXU-
 ALLY EXPLICIT DIGITIZATION, INCLUDING STILL AND AUDIO VISUAL.
   4. "SEXUALLY EXPLICIT  DIGITIZATION"  MEANS  TO  REALISTICALLY  DEPICT
 EITHER:  (A) THE NUDE BODY PARTS OF ANOTHER HUMAN BEING AS THE NUDE BODY
 PARTS OF THE DEPICTED INDIVIDUAL OR COMPUTER-GENERATED NUDE  BODY  PARTS
 AS  THE  NUDE BODY PARTS OF THE DEPICTED INDIVIDUAL; OR (B) THE DEPICTED
 INDIVIDUAL ENGAGING IN SEXUAL CONDUCT, AS DEFINED BY  SUBDIVISION  THREE
 OF  SECTION 263.00 OF THIS PART, OR SEXUAL CONTACT, AS DEFINED BY SUBDI-
 VISION THREE OF SECTION 130.00 OF THIS PART, IN WHICH THE DEPICTED INDI-
 VIDUAL DID NOT ENGAGE.
   5. "AUDIO VISUAL" MEANS ANY FILM, MOTION PICTURE, AUDIO AND/OR  VISUAL
 RECORDING, DIGITAL IMAGE, COMPUTER IMAGE OR COMPUTER-GENERATED IMAGE.
   6.  "SEXUALLY  EXPLICIT  MATERIAL"  MEANS  ANY  PORTION  OF A SEXUALLY
 EXPLICIT DEPICTION THAT SHOWS THE  DEPICTED  INDIVIDUAL  PERFORMING,  OR
 APPEARING  TO PERFORM, IN THE NUDE, MEANING WITH AN UNCLOTHED OR EXPOSED
 INTIMATE PART, AS DEFINED IN SECTION 245.15 OF THIS TITLE, OR PERFORMING
 IN, APPEARING TO PERFORM IN, OR BEING SUBJECTED TO, SEXUAL  CONDUCT,  AS
 DEFINED  BY  SUBDIVISION THREE OF SECTION 263.00 OF THIS PART, OR SEXUAL
 CONTACT, AS DEFINED BY SUBDIVISION THREE OF SECTION 130.00 OF THIS PART.
   7. "DEPICTED INDIVIDUAL" MEANS AN IDENTIFIABLE PERSON WHO APPEARS,  AS
 A  RESULT  OF SEXUALLY EXPLICIT DIGITIZATION, TO BE GIVING A PERFORMANCE
 THAT THE IDENTIFIABLE PERSON DID NOT ACTUALLY PERFORM OR THAT WAS  ACTU-
 ALLY  PERFORMED  BY THE IDENTIFIABLE PERSON BUT WAS SUBSEQUENTLY ALTERED
 TO BE IN VIOLATION OF THIS ARTICLE.
   8. "IDENTIFIABLE PERSON" MEANS AN INDIVIDUAL WHOSE IMAGE IS  OR  WOULD
 BE  CLEARLY IDENTIFIABLE AS A SPECIFIC PERSON BY ANY INDIVIDUAL.  "IDEN-
 TIFIABLE PERSON" SHALL NOT BE CONSTRUED TO REQUIRE PROOF OF  THE  ACTUAL
 IDENTITY OF THE INDIVIDUAL.
   9. "INDIVIDUAL" MEANS A NATURAL, HUMAN BEING.
 § 246.05 UNLAWFUL  DISSEMINATION  OF A SEXUALLY EXPLICIT DEPICTION OF AN
            INDIVIDUAL.
   A PERSON IS GUILTY OF UNLAWFUL DISSEMINATION OF  A  SEXUALLY  EXPLICIT
 DEPICTION  OF  AN  INDIVIDUAL  WHEN THE PERSON, WITH THE INTENT TO CAUSE
 HARM TO THE REPUTATION OR EMOTIONAL, FINANCIAL, OR PHYSICAL  WELFARE  OF
 ANOTHER  PERSON,  DISSEMINATES  SEXUALLY EXPLICIT MATERIAL THAT INCLUDES
 THE DEPICTED INDIVIDUAL, AND HE OR SHE KNOWS OR REASONABLY  SHOULD  HAVE
 KNOWN  THE  DEPICTED  INDIVIDUAL  DID NOT CONSENT TO ITS CREATION OR ITS
 DISSEMINATION.
   UNLAWFUL DISSEMINATION OF A SEXUALLY EXPLICIT DEPICTION OF AN INDIVID-
 UAL IS A CLASS B MISDEMEANOR.
 § 246.10 UNLAWFUL PUBLICATION OF A SEXUALLY  EXPLICIT  DEPICTION  OF  AN
            INDIVIDUAL.
   A  PERSON  IS  GUILTY  OF  UNLAWFUL PUBLICATION OF A SEXUALLY EXPLICIT
 DEPICTION OF AN INDIVIDUAL WHEN THE PERSON, WITH THE INTENT TO  SEXUALLY
 GRATIFY  THAT  PERSON OR ANOTHER PERSON OR WITH THE INTENT TO CAUSE HARM
 TO THE REPUTATION OR EMOTIONAL, FINANCIAL, OR PHYSICAL WELFARE OF ANOTH-
 ER PERSON,  PUBLISHES  SEXUALLY  EXPLICIT  MATERIAL  THAT  INCLUDES  THE
 DEPICTED INDIVIDUAL, AND HE OR SHE KNOWS OR REASONABLY SHOULD HAVE KNOWN
 THE  DEPICTED INDIVIDUAL DID NOT CONSENT TO ITS CREATION OR ITS PUBLICA-
 TION.
   UNLAWFUL PUBLICATION OF A SEXUALLY EXPLICIT DEPICTION OF AN INDIVIDUAL
 IS A CLASS A MISDEMEANOR.
 § 246.15 UNLAWFUL ACCESS OF A SEXUALLY EXPLICIT DEPICTION OF A CHILD.
 S. 8510                             3
 
   A PERSON IS GUILTY OF UNLAWFUL ACCESS OF A SEXUALLY EXPLICIT DEPICTION
 OF A CHILD WHEN THE PERSON, KNOWING THE CHARACTER AND  CONTENT  THEREOF,
 KNOWINGLY  ACCESSES WITH INTENT TO SEXUALLY GRATIFY A PERSON AND TO VIEW
 ANY SEXUALLY EXPLICIT DEPICTION THAT INCLUDES SEXUAL CONDUCT BY A  CHILD
 LESS THAN SEVENTEEN YEARS OF AGE.
   UNLAWFUL ACCESS OF A SEXUALLY EXPLICIT DEPICTION OF A CHILD IS A CLASS
 A MISDEMEANOR.
 § 246.20 UNLAWFUL  DISTRIBUTION  OF  A  SEXUALLY EXPLICIT DEPICTION OF A
            CHILD IN THE SECOND DEGREE.
   A PERSON IS GUILTY OF UNLAWFUL DISTRIBUTION  OF  A  SEXUALLY  EXPLICIT
 DEPICTION  OF  A CHILD IN THE SECOND DEGREE WHEN THE PERSON, KNOWING THE
 CHARACTER  AND  CONTENT  THEREOF,  DISSEMINATES  OR  PUBLISHES  SEXUALLY
 EXPLICIT  MATERIAL  THAT  INCLUDES  A DEPICTED INDIVIDUAL, AND HE OR SHE
 KNOWS OR REASONABLY SHOULD HAVE KNOWN THAT THE  DEPICTED  INDIVIDUAL  IS
 LESS THAN SEVENTEEN YEARS OF AGE.
   UNLAWFUL  DISTRIBUTION  OF A SEXUALLY EXPLICIT DEPICTION OF A CHILD IN
 THE SECOND DEGREE IS A CLASS E FELONY.
 § 246.25 UNLAWFUL DISTRIBUTION OF A SEXUALLY  EXPLICIT  DEPICTION  OF  A
            CHILD IN THE FIRST DEGREE.
   A  PERSON  IS  GUILTY  OF UNLAWFUL DISTRIBUTION OF A SEXUALLY EXPLICIT
 DEPICTION OF A CHILD IN THE FIRST DEGREE WHEN THE  PERSON,  KNOWING  THE
 CHARACTER  AND  CONTENT  THEREOF,  CREATES  AND  EITHER  DISSEMINATES OR
 PUBLISHES SEXUALLY EXPLICIT MATERIAL THAT INCLUDES A  DEPICTED  INDIVID-
 UAL, AND THE DEPICTED INDIVIDUAL IS LESS THAN SEVENTEEN YEARS OF AGE.
   UNLAWFUL  DISTRIBUTION  OF A SEXUALLY EXPLICIT DEPICTION OF A CHILD IN
 THE FIRST DEGREE IS A CLASS D FELONY.
 § 246.30 AFFIRMATIVE DEFENSE.
   1. IT SHALL BE AN AFFIRMATIVE DEFENSE TO  UNLAWFUL  PUBLICATION  OF  A
 SEXUALLY  EXPLICIT DEPICTION OF AN INDIVIDUAL AND UNLAWFUL DISSEMINATION
 OF A SEXUALLY EXPLICIT DEPICTION OF AN INDIVIDUAL THAT A DEPICTED  INDI-
 VIDUAL  WHO  IS EIGHTEEN YEARS OF AGE OR OLDER CONSENTED TO THE CREATION
 AND EITHER THE DISSEMINATION OR PUBLICATION  OF  THE  SEXUALLY  EXPLICIT
 DEPICTION.
   (A)  A  DEPICTED  INDIVIDUAL WHO IS EIGHTEEN YEARS OF AGE OR OLDER MAY
 CONSENT TO THE  CREATION,  DISSEMINATION,  OR  PUBLICATION  OF  SEXUALLY
 EXPLICIT MATERIAL ONLY BY KNOWINGLY AND VOLUNTARILY SIGNING AN AGREEMENT
 WRITTEN  IN  PLAIN  LANGUAGE  THAT INCLUDES A GENERAL DESCRIPTION OF THE
 SEXUALLY EXPLICIT MATERIAL, THE SEXUALLY EXPLICIT DEPICTION IN WHICH  IT
 WILL  BE  INCORPORATED,  AND  THE  NATURE  OF  THE DEPICTED INDIVIDUAL'S
 CONSENT.
   (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, OR LONGER IF AN AGREEMENT SO
 STIPULATES.
   2. IT SHALL NOT BE A DEFENSE UNDER THIS ARTICLE THAT:
   (A) THERE IS A DISCLAIMER INCLUDED IN THE SEXUALLY EXPLICIT  DEPICTION
 THAT  COMMUNICATES  THAT  THE  INCLUSION  OF THE DEPICTED INDIVIDUAL WAS
 UNAUTHORIZED, THAT THE DEPICTED INDIVIDUAL DID NOT  PARTICIPATE  IN  THE
 CREATION  OR DEVELOPMENT OF THE SEXUALLY EXPLICIT DEPICTION, OR THAT THE
 SEXUALLY EXPLICIT DEPICTION HAS BEEN ALTERED THROUGH DIGITIZATION; OR
   (B) THE FEATURES OF THE DEPICTED INDIVIDUAL HAVE BEEN OR  ARE  ALTERED
 PRIOR  TO OR AFTER THE CREATION OR DISTRIBUTION OF THE SEXUALLY EXPLICIT
 DEPICTION, PROVIDED THAT THE DEPICTED INDIVIDUAL REMAINS AN IDENTIFIABLE
 PERSON.
 § 246.35 CONSENT.
 S. 8510                             4

   A PERSON UNDER EIGHTEEN YEARS OF AGE SHALL BE INCAPABLE OF CONSENT FOR
 THE PURPOSES OF THIS ARTICLE. NO ADULT CAN CONSENT ON BEHALF OF A PERSON
 UNDER EIGHTEEN YEARS OF AGE.
 § 246.40 APPLICATION OF ARTICLE.
   1. THIS ARTICLE SHALL NOT APPLY TO THE FOLLOWING:
   (A) THE REPORTING OF UNLAWFUL CONDUCT;
   (B) THE CREATION, DISSEMINATION, OR PUBLICATION OF A SEXUALLY EXPLICIT
 RENDITION  OF  A DEPICTED INDIVIDUAL MADE DURING LAWFUL AND COMMON PRAC-
 TICES OF LAW ENFORCEMENT, LEGAL PROCEEDINGS, OR MEDICAL TREATMENT;
   (C) THE CREATION, DISSEMINATION, OR PUBLICATION OF A SEXUALLY EXPLICIT
 DEPICTION MADE FOR A LEGITIMATE PUBLIC PURPOSE, INCLUDING FOR  POLITICAL
 OR  NEWSWORTHY  VALUE OR SIMILAR WORK, COMMENTARY, CRITICISM, OR DISCLO-
 SURE THAT IS OTHERWISE PROTECTED BY THE CONSTITUTION OF THIS STATE OR OF
 THE UNITED STATES, PROVIDED THAT SEXUALLY EXPLICIT MATERIAL SHALL NOT BE
 CONSIDERED OF NEWSWORTHY VALUE SOLELY BECAUSE THE DEPICTED INDIVIDUAL IS
 A PUBLIC FIGURE.
   (D) THE CREATION, DISSEMINATION, OR PUBLICATION OF A SEXUALLY EXPLICIT
 DEPICTION THAT DOES NOT INCLUDE SEXUALLY EXPLICIT MATERIAL.
   2. (A) NOTHING IN THIS ARTICLE 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.
   (B)  NOTHING  IN  THIS  ARTICLE  SHALL  BE DEEMED TO INTERFERE WITH OR
 PROHIBIT ANY RIGHTS ESTABLISHED BY  SECTION  FIFTY-TWO-C  OF  THE  CIVIL
 RIGHTS  LAW,  AS  ADDED BY CHAPTER THREE HUNDRED FOUR OF THE LAWS OF TWO
 THOUSAND TWENTY.
   § 3. Subdivision 2 of section 30.10 of the criminal procedure  law  is
 amended by adding a new paragraph (a-3) to read as follows:
   (A-3)  A  PROSECUTION FOR UNLAWFUL DISTRIBUTION OF A SEXUALLY EXPLICIT
 DEPICTION OF A CHILD MUST BE COMMENCED WITHIN FIVE YEARS AFTER THE PERI-
 OD SET FORTH IN PARAGRAPH (F) OF SUBDIVISION THREE OF THIS SECTION;
   § 4.  Paragraph (f) of subdivision 3 of section 30.10 of the  criminal
 procedure  law, as amended by chapter 11 of the laws of 2019, is amended
 to read as follows:
   (f) For purposes of  a  prosecution  involving  a  sexual  offense  as
 defined  in  article  one  hundred thirty of the penal law, other than a
 sexual offense delineated in paragraph (a) of subdivision  two  of  this
 section,  committed  against  a  child  less than eighteen years of age,
 incest in the first, second or  third  degree  as  defined  in  sections
 255.27,  255.26  and  255.25  of the penal law committed against a child
 less than eighteen years of age,  [or]  use  of  a  child  in  a  sexual
 performance  as  defined  in  section  263.05 of the penal law, UNLAWFUL
 PUBLICATION OF A SEXUALLY EXPLICIT DEPICTION OF AN INDIVIDUAL AS DEFINED
 IN SECTION 246.10 OF THE PENAL LAW, UNLAWFUL DISSEMINATION OF A SEXUALLY
 EXPLICIT DEPICTION OF AN INDIVIDUAL AS DEFINED IN SECTION 246.05 OF  THE
 PENAL  LAW, OR UNLAWFUL DISTRIBUTION OF A SEXUALLY EXPLICIT DEPICTION OF
 A CHILD IN THE FIRST DEGREE OR SECOND  DEGREE  AS  DEFINED  IN  SECTIONS
 246.25  AND  246.20 OF THE PENAL LAW, the period of limitation shall not
 begin to run until the child has reached the age of twenty-three or  the
 offense  is  reported  to  a law enforcement agency or statewide central
 register of child abuse and maltreatment, whichever occurs earlier.
   § 5. Paragraph (e) of subdivision 4 of section 510.10 of the  criminal
 procedure  law,  as amended by section 2 of part UU of chapter 56 of the
 laws of 2020, is amended to read as follows:
   (e) a sex trafficking offense defined in section 230.34 or 230.34-a of
 the penal law, or a felony sex offense defined in section 70.80  of  the
 S. 8510                             5

 penal  law,  or  a  crime involving incest as defined in section 255.25,
 255.26 or 255.27 of such law, or a misdemeanor defined  in  article  one
 hundred  thirty  of such law, OR A FELONY DEFINED IN ARTICLE TWO HUNDRED
 FORTY-SIX OF SUCH LAW;
   §  6.  Subparagraph  (v)  of paragraph (b) of subdivision 1 of section
 530.20 of the criminal procedure law, as amended by section 3 of part UU
 of chapter 56 of the laws of 2020, is amended to read as follows:
   (v) a sex trafficking offense defined in section 230.34 or 230.34-a of
 the penal law, or a felony sex offense defined in section 70.80  of  the
 penal  law  or  a  crime  involving incest as defined in section 255.25,
 255.26 or 255.27 of such law, or a misdemeanor defined  in  article  one
 hundred  thirty  of such law, OR A FELONY DEFINED IN ARTICLE TWO HUNDRED
 FORTY-SIX OF SUCH LAW;
   § 7. Paragraph (m) of subdivision 4 of section 530.40 of the  criminal
 procedure  law,  as  added  by section 4 of part UU of chapter 56 of the
 laws of 2020, is amended to read as follows:
   (m) assault in the third degree as defined in section  120.00  of  the
 penal  law  or arson in the third degree as defined in section 150.10 of
 the penal law, when such crime is charged as a hate crime as defined  in
 section  485.05  of  the  penal  law, OR A FELONY DEFINED IN ARTICLE TWO
 HUNDRED FORTY-SIX OF THE PENAL LAW;
   § 8. Subparagraph (i) of paragraph (a) of  subdivision  2  of  section
 168-a  of  the  correction law, as amended by chapter 189 of the laws of
 2018, is amended to read as follows:
   (i) a conviction of or a conviction for an attempt to  commit  any  of
 the  provisions  of  sections  120.70,  130.20,  130.25, 130.30, 130.40,
 130.45, 130.60, 230.34, 230.34-a, 250.50, 255.25, 255.26 [and],  255.27,
 246.20  AND  246.25 or article two hundred sixty-three of the penal law,
 or section 135.05, 135.10, 135.20 or 135.25  of  such  law  relating  to
 kidnapping  offenses,  provided the victim of such kidnapping or related
 offense is less than seventeen years old and the  offender  is  not  the
 parent  of the victim, or section 230.04, where the person patronized is
 in fact less than  seventeen  years  of  age,  230.05,  230.06,  230.11,
 230.12,  230.13,  subdivision  two  of  section  230.30, section 230.32,
 230.33, or 230.34 of the penal law, or section 230.25 of the  penal  law
 where  the  person prostituted is in fact less than seventeen years old,
 or
   § 9. Subparagraph (i) of paragraph (a) of  subdivision  2  of  section
 168-a  of  the  correction  law, as amended by chapter 23 of the laws of
 2024, is amended to read as follows:
   (i) a conviction of or a conviction for an attempt to  commit  any  of
 the  provisions  of  sections  120.70,  130.20,  130.25,  130.30, former
 section  130.40,  former  section  130.45,  sections   130.60,   230.34,
 230.34-a,  250.50,  255.25,  255.26  [and], 255.27, 246.20 AND 246.25 or
 article two hundred sixty-three of the penal  law,  or  section  135.05,
 135.10,  135.20  or  135.25 of such law relating to kidnapping offenses,
 provided the victim of such kidnapping or related offense is  less  than
 seventeen years old and the offender is not the parent of the victim, or
 section  230.04, where the person patronized is in fact less than seven-
 teen years of age, 230.05, 230.06, 230.11, 230.12,  230.13,  subdivision
 two  of  section  230.30, section 230.32, 230.33, or 230.34 of the penal
 law, or section 230.25 of the penal law where the person prostituted  is
 in fact less than seventeen years old, or
   §  10. Severability. If any provision of this article, or any applica-
 tion of any provision of this article, is held to be invalid, that shall
 not affect the validity or effectiveness of any other provision of  this
 S. 8510                             6
 
 act, or of any other application of any provision of this act, which can
 be  given effect without that provision or application; and to that end,
 the provisions and applications of this act are severable.
   §  11. This act shall take effect immediately; provided, however, that
 the amendments to subdivision 2 of section 168-a of the correction  law,
 made  by section nine of this act shall take effect on the same date and
 in the same manner as section 32 of chapter 23  of  the  laws  of  2024,
 takes effect.

co-Sponsors

2023-S8510A (ACTIVE) - Details

See Assembly Version of this Bill:: A7519
Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Add Art 246 §§246.00 - 246.30, amd §245.15, Pen L; amd §§30.10, 510.10, 530.20 & 530.40, CP L; amd §168-a, Cor L

2023-S8510A (ACTIVE) - Summary

2023-S8510A (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S8510A

SPONSOR: FERNANDEZ
 
TITLE OF BILL:

An act to amend the penal law, the criminal procedure law and the
correction law, in relation to establishing offenses involving sexually
explicit digital alterations

 
PURPOSE OF THE BILL:

Establishes the crimes of unlawful distribution of a sexually explicit
depiction of a child in the first and second degrees and unlawful access
of a sexually explicit depiction of a child. It also amends unlawful
dissemination or publication of an intimate image (Penal Law § 245.15)
to add in two intent elements not previously considered and to require
an actor's knowledge (or presumed knowledge) of the image or video's
creation. Overall, the proposal addresses the threat of digitized sexu-
ally explicit material that is created and shared to circumvent child
sex abuse material laws and is typically harmful to the depicted indi-
viduals.

SUMMARY OF PROVISIONS:

Section 1 of the bill announces the title of the act.

Section 2 adds article 246 to the penal law with the following sections:

Section 246.00 defines the terms used in the article for the crimes of
unlawful distribution of a sexually explicit depiction of a child in the
first and second degrees and unlawful access of a sexually explicit
depiction of a child. This section incorporates by reference the terms
"disseminate" and "publish" as they are used in Penal Law § 245.15
(unlawful dissemination or publication of an intimate image) and "sexual
conduct" as it is used in Penal Law Article 263 (promotion and
possession of a sexual performance of a child). The section also defines
an identifiable person, an individual, a depicted individual, digitiza-
tion, sexually explicit material, and a sexually explicit depiction.

Sections 246.05 creates the crime of unlawful access of a sexually
explicit depiction of a child. A person is guilty of this crime when he
or she, knowing the character and content thereof, knowingly accesses,
with intent to view and to sexually gratify any person, any sexually
explicit material of a depicted individual and he or she knows or
reasonably should know that the depicted individual is less than seven-
teen years of age. Unlawful access of a sexually explicit depiction of a
child is a class A misdemeanor. This section is narrowly tailored with
specific mens rea so that it penalizes only those individuals who are
specifically perpetuating the dissemination of sexually explicit
depictions of a child or children for sexual gratification and know (or
should know) that the depictions are created by sexually explicit digi-
tization.

Section 246.10 creates the crime of unlawful distribution of a sexually
explicit depiction of a child in the second degree. A person commits
this crime when the person, knowing the character and content thereof,
disseminates or publishes sexually explicit material that includes the
depicted individual, and knows or reasonably should have known that the
depicted individual is less than seventeen years of age. Unlawful
distribution of a sexually explicit depiction of a child in the second
degree is a class E felony.

Section 246.15 creates the crime of unlawful distribution of a sexually
explicit depiction of a child in the first degree. A person commits this
crime when the person, knowing the character and content thereof,
creates and either disseminates or publishes sexually explicit material
that includes the depicted individual and that individual is less than
seventeen years old. Unlawful distribution of a sexually explicit
depiction of a child in the first degree is a class D felony. The
section imposes strict liability on the creator of a sexually explicit
depiction because that person created and shared the depiction perpet-
uating the severe harms to children that result by sharing such
depictions with others.

Section 246.20 forecloses the use of a disclaimer to circumvent the
creation, distribution, and publication of sexually explicit depictions
of children.

Section 246.25 reinforces the established policy that those under eigh-
teen cannot consent and forecloses the possibility of any adult consent-
ing on a child's behalf.

Section 246.30 states that nothing in the article should be construed to
limit or enlarge protections provided by 47 U.S.C. § 230 or interfere
with any rights established by Civil Rights Law § 52-c.

Section 3 amends paragraph (a) subdivision 1 of section 245.15 of the
penal law to include other common mens tea used by those who create
sexual deepfakes.

Section 4 amends paragraph (b) of subdivision 1 of section 245.15 of the
penal law to require an actor charged with this crime to have knowledge
or presumed knowledge of a sexual deepfake because knowledge of a
deepfake's creation in and of itself can alert the person that they
should not be disseminating the sexual image or video.

Sections 5 and 6 establish the statute of limitations for the article
and amend C.P.L. § 30.10(3)(f) to include certain of the enumerated
crimes.

Sections 7, 8, and 9 amend the criminal procedure law to allow certain
of the enumerated offenses to be qualifying felony offenses that are
eligible for bail and other securing orders.

Section 10 amends the correction law to add first- and second- degree
unlawful distribution of sexually explicit depiction of a child as
reportable sex offenses.

Section 11 provides for the severability of any provision in the event
that any other provision is invalidated.

Section 12 announces the time within which the act shall take effect.

 
JUSTIFICATION:

The State has a compelling interest in safeguarding the physical,
psychological, and reputational wellbeing of its minors. To that end,
Article 263 was enacted to prohibit the possession and distribution of
child sex abuse material ("CSAM"). The law was later amended to close a
loophole that allowed for the viewing, but not downloading, of CSAM on a
computer. With the advent of newer technology, pedophiles regularly
circumvent existing laws by taking photographs and videos of identifi-
able children and digitally altering those images and videos to make it
appear as if those children are naked or engaged in sexual conduct. The
identity of the depicted children is established by using identifying
features of the children, most often their faces. Their identities are
also often established through information posted along with the altered
content. Bad actors are increasingly using newer artificial intelligence
applications to create incredibly detailed images and videos that are
indistinguishable from real life. In popular parlance, these digitally
altered images and videos are known as deepfakes.

Created using artificial intelligence-assisted technology, deepfakes are
audio visual material that is convincingly altered and manipulated to
misrepresent individuals as saying or doing something that they have not
actually said or done. Because sexual deepfakes appear genuine, they can
sully reputations, destroy educational and employment opportunities,
ruin personal relationships, and invite unwanted requests for sexual
services.

Deepfakes depicting CSAM are especially pernicious. The images and vide-
os often combine an innocent photograph or video of a child, pulled by a
pedophile from a parent's social media or blog, with a sexual or nude
picture or video of an adult creating a realistic depiction that can,
once circulated, cause lasting harm to the child.  As technology
advances, bad actors can use artificial intelligence programs to easily
eliminate clothing from a photograph or create a hyper-realistic image
or video depicting the identifiable child engaged in a wide range of
sexual conduct.

There is, moreover, no limit to the number of sexual deepfakes of a
child that a pornographer can generate. In one case ( United States

v. Mecham, 950 F.3d 267  
5H CIR. 2020), a Texas man was convicted of
possessing 31,562 images and 1,741 videos of CSAM, all of them digitally
altered to include the faces of the man's grandchildren, ranging in age
from four- to sixteen-years-old. One of the videos showed his grand-
daughter's face on an adult female having sex, and the defendant super-
imposed his face on the male in the video. Victims may understandably
become traumatized when they discover that cherished childhood memories
have been transformed into CSAM. And the problem is only growing. In
2022, the National Center for Missing & Exploited Children's Cyber
Tipline received approximately thirty-two million reports of suspected
online CSAM alone. Indeed, in January of 2024, the American Academy of
Pediatrics released a paper entitled Rising Threats of AI-Driven Child
Sexual Abuse Material to warn doctors of the widespread and growing
problem of virtual CSAM.

These sexual deepfakes of children give rise to the same reputational
harm caused by conventional forms of CSAM, but the penalties for their
creation and distribution pales in comparison to other statutes protect-
ing children. In 2003, Congress, recognizing the burgeoning problem,
modified federal law to include such digitally altered images in its
definition of CSAM. In 2019, Virginia added deepfaked images to its

statute that criminalizes the unlawful dissemination or sale of images
of another person.

New York took its first steps to close this loophole when it amended the
unlawful dissemination or publication of an intimate image statute
(Penal Law 5 245.15). This statute, commonly referred to as the
revenge-porn statute, was modified to prohibit the dissemination of
digitally altered images and videos. While this statute prohibits the
sharing of sexual deepfakes of all individuals, including children, it
fails to adequately protect children-a uniquely vulnerable and defense-
less segment of the population who are in need of greater protection
than adults. This is unsurprising considering the law's intent was the
protection of adults. In fact, the statute does not even specifically
mention children. This lack of specialized protection is at odds with
the rest of the Penal Law that routinely enhances protections for chil-
dren. See, e.g., Penal Law § 130.25(1), 130.30, 130.35, 130.75, 130.80,
130.95, 260.10, 263.15, 263.16.

Tragically, pedophiles who traffic in sexual deepfakes of children are
able to do so in the absence of appropriate laws. And a technological
solution does not seem to be imminent. In what some liken to a game of
whack-a-mole, the research community is developing improved methods of
face manipulation detection as powerful synthetic face generators
produce even more realistic images and videos. C. Rathgeb et al. (eds.),
Handbook of Digital Face Manipulation and Detection (2022). As of yet,
however, there is no tool that can reliably identify and stop the
creation and dissemination of sexual deepfakes of children. And, as our
history with the internet has proved time and again, bad actors will
likely find ways to stay ahead of any tools created.

The spread of sexual deepfakes can affect any community. In 2021, for
instance, approximately thirteen women alerted Nassau County police that
they had discovered images of themselves on a pornographic website. The
women reported that dozens of images, taken when they were in middle and
high school, had been reposted on the website from their own social
media platforms and altered to depict them as engaging in sexual
conduct. These new digitally altered images misrepresented the victims
as engaging in sexual conduct when they were minors. For many of the
women, their faces had been superimposed on separate images of others
engaged in sexual activity. The posted images were accompanied by the
women's actual names, addresses, telephone numbers, and social media
contact information. Some of the images were doctored to make it appear
as if they were voluntarily sent by the victim through social media to
the recipient. One victim was as young as twelve years old in the
original photographs that had been altered. As a result of their images
being posted, some of these women were subjected to constant harassment
and frequent unwanted requests for sexual services.

Nassau County police thereafter charged a local man with posting the
images and a grand jury indicted him for crimes including stalking,
aggravated harassment, and promoting CSAM related to his dissemination
of an unaltered sexual image of an actual child. Many of the thirteen
women had attended middle school and high school with the man accused of
creating digitally altered images, and he allegedly targeted these women
because of perceived slights he had suffered. In fact, he used his
purported friendships with these women to gain access to their other-
wise-private social media accounts.  Prosecutors could not charge him
with publishing and distributing the digitally altered images of the
underage girls because New York did not penalize this conduct, notwith-
standing the fact that it subjected the victims to years of harassment,
embarrassment, and reputational harm.

The Digital Alterations Protection Act ("DAPA") offers a path forward to
protect New York's children from the scourge of sexual deepfakes.  By
creating felony offenses with enhanced punishments, DAPA increases the
deterrent effect on those considering trafficking in sexual deepfakes of
children. At the same time, DAPA signals to these bad actors that the
protection of children is a fundamental interest of the State. For any
individual who is undeterred by the possibility of being convicted of a
felony offense, DAPA requires those convicted to register as a sex
offender, which often comes with increased monitoring that can aid in
preventing recidivism. Indeed, DAPA mirrors the reporting requirement of
those convicted of the existing CSAM laws found in Penal Law sections
263.15 and 263.16 (promoting a sexual performance by a child and
possessing a sexual performance by a child).

In light of the above, it is necessary to continue the important work
started by the New York Legislature this past term. Passage of DAPA will
protect the growing number of victims from the severe reputational,
emotional, and financial harms caused by the depraved and abhorrent
conduct of those creating sexual deepfakes from publicly shared media of
children and adults.

 
PRIOR LEGISLATIVE HISTORY:

New Bill

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

 
EFFECTIVE DATE:
This act would take effect immediately.

2023-S8510A (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  8510--A
 
                             I N  S E N A T E
 
                             February 7, 2024
                                ___________
 
 Introduced  by Sens. FERNANDEZ, PALUMBO -- 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,  the  criminal  procedure  law  and  the
   correction law, in relation to establishing offenses involving sexual-
   ly explicit digital alterations
 
   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 "digital alterations protections act".
   §  2.  The penal law is amended by adding a new article 246 to read as
 follows:
 
                                ARTICLE 246
         OFFENSES INVOLVING SEXUALLY EXPLICIT DIGITAL ALTERATIONS
 
 SECTION 246.00 DEFINITIONS.
         246.05 UNLAWFUL ACCESS OF A SEXUALLY  EXPLICIT  DEPICTION  OF  A
                  CHILD.
         246.10 UNLAWFUL DISTRIBUTION OF A SEXUALLY EXPLICIT DEPICTION OF
                  A CHILD IN THE SECOND DEGREE.
         246.15 UNLAWFUL DISTRIBUTION OF A SEXUALLY EXPLICIT DEPICTION OF
                  A CHILD IN THE FIRST DEGREE.
         246.20 DISCLAIMERS.
         246.25 CONSENT.
         246.30 APPLICATION OF ARTICLE.
 § 246.00 DEFINITIONS.
   AS USED IN THIS ARTICLE, THE FOLLOWING DEFINITIONS SHALL APPLY:
   1.  "DISSEMINATE"  AND  "PUBLISH" SHALL HAVE THE SAME MEANINGS AS SUCH
 TERMS ARE DEFINED IN SECTION 250.40 OF THIS TITLE.
   2. "CREATE" MEANS TO DESIGN, DEVELOP, DEVISE, GENERATE,  ISSUE,  MAKE,
 MANUFACTURE, PRODUCE, OR TRANSMUTE.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11051-08-4

 S. 8510--A                          2
 
   3.  "SEXUALLY EXPLICIT DEPICTION" MEANS ANY WORK CREATED THROUGH SEXU-
 ALLY EXPLICIT DIGITIZATION, INCLUDING STILL AND AUDIO VISUAL DEPICTIONS.
   4.  "SEXUALLY  EXPLICIT  DIGITIZATION"  MEANS A REALISTIC DEPICTION OF
 EITHER: (A) THE NUDE BODY PARTS OF ANOTHER HUMAN BEING AS THE NUDE  BODY
 PARTS  OF  THE DEPICTED INDIVIDUAL OR COMPUTER-GENERATED NUDE BODY PARTS
 AS THE NUDE BODY PARTS OF THE DEPICTED INDIVIDUAL; OR (B)  THE  DEPICTED
 INDIVIDUAL  ENGAGING  IN SEXUAL CONDUCT, AS DEFINED BY SUBDIVISION THREE
 OF SECTION 263.00 OF THIS PART, OR SEXUAL CONTACT, AS DEFINED BY  SUBDI-
 VISION THREE OF SECTION 130.00 OF THIS PART, IN WHICH THE DEPICTED INDI-
 VIDUAL DID NOT ENGAGE.
   5.  "AUDIO VISUAL" MEANS ANY FILM, MOTION PICTURE, AUDIO AND/OR VISUAL
 RECORDING, DIGITAL IMAGE, COMPUTER IMAGE OR COMPUTER-GENERATED IMAGE.
   6. "SEXUALLY EXPLICIT  MATERIAL"  MEANS  ANY  PORTION  OF  A  SEXUALLY
 EXPLICIT  DEPICTION  THAT  SHOWS  THE DEPICTED INDIVIDUAL PERFORMING, OR
 APPEARING TO PERFORM, IN THE NUDE, MEANING WITH AN UNCLOTHED OR  EXPOSED
 INTIMATE PART, AS DEFINED IN SECTION 245.15 OF THIS TITLE, OR PERFORMING
 IN,  APPEARING  TO PERFORM IN, OR BEING SUBJECTED TO, SEXUAL CONDUCT, AS
 DEFINED BY SUBDIVISION THREE OF SECTION 263.00 OF THIS PART,  OR  SEXUAL
 CONTACT, AS DEFINED BY SUBDIVISION THREE OF SECTION 130.00 OF THIS PART.
   7.  "DEPICTED INDIVIDUAL" MEANS AN IDENTIFIABLE PERSON WHO APPEARS, AS
 A RESULT OF SEXUALLY EXPLICIT DIGITIZATION, TO BE ENGAGING IN CONDUCT IN
 WHICH THE IDENTIFIABLE PERSON DID NOT ACTUALLY ENGAGE  IN  OR  THAT  WAS
 ACTUALLY  ENGAGED IN BY THE IDENTIFIABLE PERSON BUT THE DEPICTION OF THE
 ACTUAL CONDUCT WAS SUBSEQUENTLY ALTERED TO BE IN VIOLATION OF THIS ARTI-
 CLE.
   8. "IDENTIFIABLE PERSON" MEANS AN INDIVIDUAL WHOSE IMAGE IS  OR  WOULD
 BE  REASONABLY  IDENTIFIABLE  AS A SPECIFIC PERSON.  SUCH IDENTIFICATION
 CAN BE BASED UPON THE SEXUALLY EXPLICIT DEPICTION ITSELF OR FROM  INFOR-
 MATION DISPLAYED IN CONNECTION WITH ANY SEXUALLY EXPLICIT DEPICTION.
   9. "INDIVIDUAL" MEANS A NATURAL, HUMAN BEING.
 § 246.05 UNLAWFUL ACCESS OF A SEXUALLY EXPLICIT DEPICTION OF A CHILD.
   A PERSON IS GUILTY OF UNLAWFUL ACCESS OF A SEXUALLY EXPLICIT DEPICTION
 OF  A  CHILD WHEN THE PERSON, KNOWING THE CHARACTER AND CONTENT THEREOF,
 KNOWINGLY ACCESSES ANY SEXUALLY EXPLICIT MATERIAL OF A DEPICTED INDIVID-
 UAL WITH THE INTENT TO VIEW AND SEXUALLY GRATIFY  ANY  PERSON  AND  SUCH
 PERSON  KNOWS OR REASONABLY SHOULD HAVE KNOWN THAT THE DEPICTED INDIVID-
 UAL IS LESS THAN SEVENTEEN YEARS OF AGE.
   UNLAWFUL ACCESS OF A SEXUALLY EXPLICIT DEPICTION OF A CHILD IS A CLASS
 A MISDEMEANOR.
 § 246.10 UNLAWFUL DISTRIBUTION OF A SEXUALLY  EXPLICIT  DEPICTION  OF  A
            CHILD IN THE SECOND DEGREE.
   A  PERSON  IS  GUILTY  OF UNLAWFUL DISTRIBUTION OF A SEXUALLY EXPLICIT
 DEPICTION OF A CHILD IN THE SECOND DEGREE WHEN THE PERSON,  KNOWING  THE
 CHARACTER  AND  CONTENT  THEREOF,  DISSEMINATES  OR  PUBLISHES  SEXUALLY
 EXPLICIT MATERIAL THAT INCLUDES A DEPICTED INDIVIDUAL, AND  SUCH  PERSON
 KNOWS  OR  REASONABLY  SHOULD HAVE KNOWN THAT THE DEPICTED INDIVIDUAL IS
 LESS THAN SEVENTEEN YEARS OF AGE.
   UNLAWFUL DISTRIBUTION OF A SEXUALLY EXPLICIT DEPICTION OF A  CHILD  IN
 THE SECOND DEGREE IS A CLASS E FELONY.
 § 246.15 UNLAWFUL  DISTRIBUTION  OF  A  SEXUALLY EXPLICIT DEPICTION OF A
            CHILD IN THE FIRST DEGREE.
   A PERSON IS GUILTY OF UNLAWFUL DISTRIBUTION  OF  A  SEXUALLY  EXPLICIT
 DEPICTION  OF  A  CHILD IN THE FIRST DEGREE WHEN THE PERSON, KNOWING THE
 CHARACTER AND  CONTENT  THEREOF,  CREATES  AND  EITHER  DISSEMINATES  OR
 PUBLISHES SEXUALLY EXPLICIT MATERIAL THAT INCLUDES A DEPICTED INDIVIDUAL
 AND SUCH DEPICTED INDIVIDUAL IS LESS THAN SEVENTEEN YEARS OF AGE.
 S. 8510--A                          3
 
   UNLAWFUL  DISTRIBUTION  OF A SEXUALLY EXPLICIT DEPICTION OF A CHILD IN
 THE FIRST DEGREE IS A CLASS D FELONY.
 § 246.20  DISCLAIMERS.
   IT SHALL NOT BE A DEFENSE UNDER THIS ARTICLE THAT:
   1.  THERE  IS A DISCLAIMER INCLUDED IN THE SEXUALLY EXPLICIT DEPICTION
 THAT COMMUNICATES THAT THE INCLUSION  OF  THE  DEPICTED  INDIVIDUAL  WAS
 UNAUTHORIZED,  THAT  THE  DEPICTED INDIVIDUAL DID NOT PARTICIPATE IN THE
 CREATION OR DEVELOPMENT OF THE SEXUALLY EXPLICIT DEPICTION, OR THAT  THE
 SEXUALLY EXPLICIT DEPICTION HAS BEEN ALTERED THROUGH DIGITIZATION; OR
   2.  THE  FEATURES OF THE DEPICTED INDIVIDUAL HAVE BEEN OR WERE ALTERED
 PRIOR TO OR AFTER THE CREATION OR DISTRIBUTION OF THE SEXUALLY  EXPLICIT
 MATERIAL,  PROVIDED THAT THE DEPICTED INDIVIDUAL REMAINS AN IDENTIFIABLE
 PERSON.
 § 246.25 CONSENT.
   A PERSON UNDER EIGHTEEN YEARS OF AGE SHALL BE  INCAPABLE  OF  CONSENT.
 NO ADULT CAN CONSENT ON BEHALF OF A PERSON UNDER EIGHTEEN YEARS OF AGE.
 § 246.30 APPLICATION OF ARTICLE.
   1. THIS ARTICLE SHALL NOT APPLY TO THE FOLLOWING:
   (A) THE REPORTING OF UNLAWFUL CONDUCT;
   (B) THE CREATION, DISSEMINATION, OR PUBLICATION OF A SEXUALLY EXPLICIT
 DEPICTION  OF  A  DEPICTED INDIVIDUAL MADE FOR LAW ENFORCEMENT PURPOSES,
 LEGAL PROCEEDINGS, OR LAWFUL MEDICAL TREATMENTS; OR
   (C) THE CREATION, DISSEMINATION, OR PUBLICATION OF A SEXUALLY EXPLICIT
 DEPICTION MADE FOR A LEGITIMATE PUBLIC PURPOSE, INCLUDING FOR  POLITICAL
 OR  NEWSWORTHY  VALUE OR SIMILAR WORK, COMMENTARY, CRITICISM, OR DISCLO-
 SURE THAT IS OTHERWISE PROTECTED BY THE CONSTITUTION OF THIS STATE OR OF
 THE UNITED STATES, PROVIDED THAT SEXUALLY EXPLICIT MATERIAL SHALL NOT BE
 CONSIDERED OF NEWSWORTHY VALUE SOLELY BECAUSE THE DEPICTED INDIVIDUAL IS
 A PUBLIC FIGURE.
   2. NOTHING IN THIS ARTICLE 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.  Paragraph  (a)  of subdivision 1 of section 245.15 of the penal
 law, as amended by chapter 513 of the laws of 2023, is amended  to  read
 as follows:
   (a)  with  intent to SEXUALLY GRATIFY THAT PERSON OR ANOTHER PERSON OR
 WITH THE INTENT TO cause harm to the REPUTATION OR emotional,  financial
 or physical welfare of another person, they intentionally disseminate or
 publish  a  still or video image depicting such other person with one or
 more intimate parts exposed or engaging in sexual conduct  with  another
 person,  including  an  image  created or altered by digitization, where
 such person may reasonably be identified from the still or  video  image
 itself  or  from  information  displayed in connection with the still or
 video image; and
   § 4. Paragraph (b) of subdivision 1 of section  245.15  of  the  penal
 law,  as  amended by chapter 513 of the laws of 2023, is amended to read
 as follows:
   (b) the actor knew or reasonably should have  known  that  the  person
 depicted  did  not  consent to such CREATION, dissemination, or publica-
 tion, including the CREATION, dissemination, or publication of an  image
 taken  with  the  consent  of the person depicted when such person had a
 reasonable expectation that the image would remain  private,  regardless
 of whether the actor was present when such image was taken.
   §  5.  Subdivision 2 of section 30.10 of the criminal procedure law is
 amended by adding a new paragraph (a-3) to read as follows:
 S. 8510--A                          4
 
   (A-3) A PROSECUTION FOR UNLAWFUL DISTRIBUTION OF A  SEXUALLY  EXPLICIT
 DEPICTION OF A CHILD MUST BE COMMENCED WITHIN FIVE YEARS AFTER THE PERI-
 OD SET FORTH IN PARAGRAPH (F) OF SUBDIVISION THREE OF THIS SECTION;
   §  6.  Paragraph (f) of subdivision 3 of section 30.10 of the criminal
 procedure law, as amended by chapter 11 of the laws of 2019, is  amended
 to read as follows:
   (f)  For  purposes  of  a  prosecution  involving  a sexual offense as
 defined in article one hundred thirty of the penal  law,  other  than  a
 sexual  offense  delineated  in paragraph (a) of subdivision two of this
 section, committed against a child less  than  eighteen  years  of  age,
 incest  in  the  first,  second  or  third degree as defined in sections
 255.27, 255.26 and 255.25 of the penal law  committed  against  a  child
 less  than  eighteen  years  of  age,  [or]  use  of a child in a sexual
 performance as defined in section 263.05 of the penal law,  OR  UNLAWFUL
 DISTRIBUTION  OF  A  SEXUALLY EXPLICIT DEPICTION OF A CHILD IN THE FIRST
 DEGREE OR SECOND DEGREE AS DEFINED IN SECTIONS 246.10 AND 246.15 OF  THE
 PENAL  LAW,  the  period  of limitation shall not begin to run until the
 child has reached the age of twenty-three or the offense is reported  to
 a  law  enforcement  agency or statewide central register of child abuse
 and maltreatment, whichever occurs earlier.
   § 7. Paragraph (e) of subdivision 4 of section 510.10 of the  criminal
 procedure  law,  as amended by section 2 of part UU of chapter 56 of the
 laws of 2020, is amended to read as follows:
   (e) a sex trafficking offense defined in section 230.34 or 230.34-a of
 the penal law, or a felony sex offense defined in section 70.80  of  the
 penal  law,  or  a  crime involving incest as defined in section 255.25,
 255.26 or 255.27 of such law, or a misdemeanor defined  in  article  one
 hundred  thirty  of such law, OR A FELONY DEFINED IN ARTICLE TWO HUNDRED
 FORTY-SIX OF SUCH LAW;
   § 8. Subparagraph (v) of paragraph (b) of  subdivision  1  of  section
 530.20 of the criminal procedure law, as amended by section 3 of part UU
 of chapter 56 of the laws of 2020, is amended to read as follows:
   (v) a sex trafficking offense defined in section 230.34 or 230.34-a of
 the  penal  law, or a felony sex offense defined in section 70.80 of the
 penal law or a crime involving incest  as  defined  in  section  255.25,
 255.26  or  255.27  of such law, or a misdemeanor defined in article one
 hundred thirty of such law, OR A FELONY DEFINED IN ARTICLE  TWO  HUNDRED
 FORTY-SIX OF SUCH LAW;
   §  9. Paragraph (m) of subdivision 4 of section 530.40 of the criminal
 procedure law, as added by section 4 of part UU of  chapter  56  of  the
 laws of 2020, is amended to read as follows:
   (m)  assault  in  the third degree as defined in section 120.00 of the
 penal law or arson in the third degree as defined in section  150.10  of
 the  penal law, when such crime is charged as a hate crime as defined in
 section 485.05 of the penal law, OR A  FELONY  DEFINED  IN  ARTICLE  TWO
 HUNDRED FORTY-SIX OF THE PENAL LAW;
   §  10.  Subparagraph  (i) of paragraph (a) of subdivision 2 of section
 168-a of the correction law, as amended by chapter 189 of  the  laws  of
 2018, is amended to read as follows:
   (i)  a  conviction  of or a conviction for an attempt to commit any of
 the provisions of  sections  120.70,  130.20,  130.25,  130.30,  130.40,
 130.45,  130.60, 230.34, 230.34-a, 250.50, 255.25, 255.26 [and], 255.27,
 246.10 AND 246.15 or article two hundred sixty-three of the  penal  law,
 or  section  135.05,  135.10,  135.20  or 135.25 of such law relating to
 kidnapping offenses, provided the victim of such kidnapping  or  related
 offense  is  less  than  seventeen years old and the offender is not the
 S. 8510--A                          5
 
 parent of the victim, or section 230.04, where the person patronized  is
 in  fact  less  than  seventeen  years  of  age, 230.05, 230.06, 230.11,
 230.12, 230.13, subdivision  two  of  section  230.30,  section  230.32,
 230.33,  or  230.34 of the penal law, or section 230.25 of the penal law
 where the person prostituted is in fact less than seventeen  years  old,
 or
   §  11.  Subparagraph  (i) of paragraph (a) of subdivision 2 of section
 168-a of the correction law, as amended by chapter 23  of  the  laws  of
 2024, is amended to read as follows:
   (i)  a  conviction  of or a conviction for an attempt to commit any of
 the provisions  of  sections  120.70,  130.20,  130.25,  130.30,  former
 section   130.40,   former  section  130.45,  sections  130.60,  230.34,
 230.34-a, 250.50, 255.25, 255.26 [and], 255.27,  246.10  AND  246.15  or
 article  two  hundred  sixty-three  of the penal law, or section 135.05,
 135.10, 135.20 or 135.25 of such law relating  to  kidnapping  offenses,
 provided  the  victim of such kidnapping or related offense is less than
 seventeen years old and the offender is not the parent of the victim, or
 section 230.04, where the person patronized is in fact less than  seven-
 teen  years  of age, 230.05, 230.06, 230.11, 230.12, 230.13, subdivision
 two of section 230.30, section 230.32, 230.33, or 230.34  of  the  penal
 law,  or section 230.25 of the penal law where the person prostituted is
 in fact less than seventeen years old, or
   § 12. Severability. If any provision of this article, or any  applica-
 tion of any provision of this article, is held to be invalid, that shall
 not  affect the validity or effectiveness of any other provision of this
 act, or of any other application of any provision of this act, which can
 be given effect without that provision or application; and to that  end,
 the provisions and applications of this act are severable.
   §  13. This act shall take effect immediately; provided, however, that
 the amendments to subdivision 2 of section 168-a of the correction  law,
 made  by  section  eleven of this act shall take effect on the same date
 and in the same manner as section 32 of chapter 23 of the laws of  2024,
 takes effect.

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Senate Bill S8510A

Sponsored By

Current Bill Status - In Senate Committee Codes Committee

Bill Amendments

co-Sponsors

2023-S8510 - Details

2023-S8510 - Summary

2023-S8510 - Sponsor Memo

2023-S8510 - Bill Text download pdf

co-Sponsors

2023-S8510A (ACTIVE) - Details

2023-S8510A (ACTIVE) - Summary

2023-S8510A (ACTIVE) - Sponsor Memo

2023-S8510A (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S8510A

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Sponsored By

Nathalia Fernandez

Current Bill Status - In Senate Committee Codes Committee

Bill Amendments

co-Sponsors

Anthony H. Palumbo

2023-S8510 - Details

2023-S8510 - Summary

2023-S8510 - Sponsor Memo

2023-S8510 - Bill Text download pdf

co-Sponsors

Anthony H. Palumbo

2023-S8510A (ACTIVE) - Details

2023-S8510A (ACTIVE) - Summary

2023-S8510A (ACTIVE) - Sponsor Memo

2023-S8510A (ACTIVE) - Bill Text download pdf

Comments