NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A6775
SPONSOR: Vanel TITLE OF BILL:
An act to amend the penal law, in relation to unlawful dissemination or
publication of a fabricated photographic, videographic, or audio record
PURPOSE OR GENERAL IDEA OF BILL:
Establishes the crime of unlawful dissemination or publication of a
fabricated photographic, videographic, or audio record.
SUMMARY OF PROVISIONS:
245.20(1): Prohibits the act of creating a fabricated photographic,
videographic, or audio record of an identifiable person without their
consent and disseminating or publishing that record with the intent to
harm the liberty or emotional, social, financial or physical welfare of
a person.
245.20(2): Defines terms.
245.20(3): Excludes certain acts from this section.
245.20(4): Clarifies that this section is not intended to limit or
enlarge the protections of 47 U.S.C. Section 230.
JUSTIFICATION:
Historically, visual and auditory records have been widely accepted to
the public as practically self-authenticating, largely due to the innate
human ability to discern inconsistencies in these records as well as the
effort and skill it takes to create a realistic fabricated visual or
auditory record. The emergence of synthetic media programs, however, now
challenges our relationship with media records and their authenticity.
These advanced artificial intelligence systems, powered by neural
networks and extensive datasets containing billions of images and points
of data, have the capacity to generate hyper-realistic images and audio
recordings that, to the most astute observers, are virtually indistin-
guishable from their real-life counterparts. The rapid advancement of
this technology raises significant concerns regarding the potential for
malicious use and the erosion of trust in the media we share.
While the impact of synthetic media may be somewhat limited for more
consequential fabricated media due to the speed at which speech counter-
ing the fabricated media can travel online, concerns persist regarding
images that evade detection or do not gain enough attention to justify
widespread counter speech, typically media shared privately or in limit-
ed groups, or media shared concerning people that won't garner
reputable, independent fact-checker attention.
The state has a compelling interest in protecting its residents from the
dangers of synthetic media that specifically targets them, particularly
those who do not have the resources or reach to counter fabricated
media. Existing criminal laws, such as those addressing extortion, may
provide some recourse for individuals targeted by synthetic media where
something of value is sought, and existing civil defamation common law
provides recourse for persons who have false information spread about
them. However, the unprecedented ease with which these deceptive images
can now be created necessitates additional criminal legal measures to
combat a wide range of potential harms that may not be adequately
addressed by existing laws.
Given the potential for individuals to develop their own synthetic media
technologies, it is crucial to recognize that traditional methods of
regulation, such as public registries or blanket prohibitions, may prove
inadequate or overly burdensome on First Amendment rights. This bill is
narrowly tailored to only criminalize the dissemination or publication
of fabricated records depicting an identifiable person in a non-existent
scenario without their consent. Importantly, it does not criminalize
third-party sharing of such images and includes numerous exceptions to
ensure that protected speech is not burdened.
PRIOR LEGISLATIVE HISTORY:
None.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None
EFFECTIVE DATE:
This act shall take effect on the thirtieth day after it shall have
become a law.
STATE OF NEW YORK
________________________________________________________________________
6775
2023-2024 Regular Sessions
IN ASSEMBLY
May 8, 2023
___________
Introduced by M. of A. VANEL -- read once and referred to the Committee
on Codes
AN ACT to amend the penal law, in relation to unlawful dissemination or
publication of a fabricated photographic, videographic, or audio
record
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The penal law is amended by adding a new section 245.20 to
2 read as follows:
3 § 245.20 Unlawful dissemination or publication of a fabricated photo-
4 graphic, videographic, or audio record.
5 1. A person is guilty of unlawful dissemination or publication of a
6 fabricated photographic, videographic, or audio record when, with intent
7 to cause harm to the liberty or emotional, social, financial or physical
8 welfare of an identifiable person or persons, he or she intentionally
9 creates or causes to be created a fabricated record of such person or
10 persons and disseminates or publishes such record of such person or
11 persons without such person or persons' consent.
12 2. For purposes of this section:
13 (a) "Identifiable" shall mean the ability to discern an individual's
14 identity either through the fabricated record itself or from information
15 displayed in connection with the fabricated record;
16 (b) "Fabricated photographic, videographic, or audio record" or
17 "fabricated record" shall mean a still image, video or audio recording
18 that:
19 (i) exhibits a high level of authenticity or convincing appearance
20 that is visually or audibly indistinguishable from reality;
21 (ii) is either manipulated or entirely artificial, including but not
22 limited to, manipulation through means of advanced synthetic media tech-
23 nologies that utilize artificial intelligence, such as deepfakes, gener-
24 ative pre-trained transformers and stable diffusion;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10778-02-3
A. 6775 2
1 (iii) depicts a scenario that did not actually occur or that has been
2 altered in a significant way from how it actually occurred; and
3 (c) "Disseminate" and "publish" shall have the same meanings as
4 defined in section 250.40 of this title.
5 3. This section shall not apply to the following:
6 (a) Dissemination or publication of a fabricated record by a person
7 who did not create the fabricated record, whether or not such person is
8 aware of the authenticity of the record;
9 (b) Dissemination or publication of a fabricated record that was
10 created during the lawful and common practices of law enforcement, legal
11 proceedings or medical treatment where the record is not disseminated or
12 published with the intent to misrepresent its authenticity;
13 (c) Dissemination or publication of a fabricated record that was
14 created for the purpose of political or social commentary, parody,
15 satire, or artistic expression that is not disseminated or published
16 with the intent to misrepresent its authenticity;
17 (d) Dissemination or publication of a fabricated record that was
18 created for the purpose of news reporting where the record is not
19 disseminated or published with the intent to misrepresent its authentic-
20 ity;
21 (e) Dissemination or publication of a fabricated record that was
22 created where the person reasonably believes that the dissemination or
23 publication of the record is necessary to protect themselves from seri-
24 ous bodily injury or death;
25 (f) Dissemination or publication of a fabricated record that was
26 created for the purpose of historical reenactment or preservation,
27 digital restoration or preservation of cultural heritage where the
28 record is not disseminated or published with the intent to misrepresent
29 its authenticity;
30 (g) Dissemination or publication of a fabricated record that was
31 created for the purpose of training or education, provided however that
32 such training or education shall not include the training or education
33 of a person or persons to engage in unlawful activities;
34 (h) Dissemination or publication of a fabricated record that was
35 created for the purpose of memorializing a deceased person;
36 (i) Dissemination or publication of a fabricated record that was
37 created for the purpose of lawful scientific, academic, or technological
38 research or development where the record is not disseminated or
39 published with the intent to misrepresent its authenticity; and
40 (j) Initial dissemination or publication of a fabricated record by the
41 platform or service, provided that the fabricated record was not created
42 by an individual who is directly affiliated with the platform or
43 service.
44 4. Nothing in this section shall be construed to limit, or to enlarge,
45 the protections that 47 U.S.C § 230 confers on an interactive computer
46 service for content provided by another information content provider, as
47 such terms are defined in 47 U.S.C. § 230.
48 Unlawful dissemination or publication of a fabricated photographic,
49 videographic, or audio record is a class E felony.
50 § 2. This act shall take effect on the thirtieth day after it shall
51 have become a law.
