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S08631 Text:

                STATE OF NEW YORK
                    IN SENATE
                                    February 23, 2024
        Introduced  by Sen. GONZALEZ -- read twice and ordered printed, and when
          printed to be committed to the Committee on Elections
        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:

     1    Section  1.   Short title. This act shall be known and may be cited as
     2  the "New York false AI representations act (New York FAIR Act)".
     3    § 2.  The election law is amended by adding a new  section  16-119  to
     4  read as follows:
     5    §  16-119.    Materially  deceptive  media;  proceedings.  1.  For the
     6  purposes of this section, the term "materially  deceptive  media"  means
     7  any  image,  audio  or  video  of  a  candidate's appearance, speech, or
     8  conduct that has  been  intentionally  manipulated,  used  for  campaign
     9  purposes in a manner which:
    10    (a)  falsely  depicts  an  individual engaging in speech or conduct in
    11  which the depicted individual did not in fact engage;
    12    (b) a reasonable viewer or listener would incorrectly believe that the
    13  depicted individual engaged in the speech or conduct depicted; and
    14    (c) is created by or with a machine-based system that, for explicit or
    15  implicit objectives, infers, from the input it receives, how to generate
    16  outputs such as predictions, content, recommendations, or decisions that
    17  can influence physical or virtual environments.
    18    2. Any candidate depicted in materially deceptive media shall  have  a
    19  cause  of  action  against such individual or entity who disseminated or
    20  published such media without the consent of the person depicted and  who
    21  knew or should have known that it was materially deceptive.
    22    3.  In  any  action  commenced  pursuant  to  subdivision  one of this
    23  section, the finder of fact, in its  discretion,  may  award  injunctive
    24  relief,  punitive  damages,  compensatory  damages  and reasonable court
    25  costs and attorneys' fees.
    26    4. A cause of action or special proceeding under this section shall be
    27  commenced within three years after the dissemination or  publication  of
    28  such media.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 8631                             2
     1    5. In any action commenced under this section, the plaintiff bears the
     2  burden  of  establishing  the use of materially deceptive media by clear
     3  and convincing evidence.
     4    6.  Because of the frequency of elections, the severe consequences and
     5  irreparable  harm  of  holding  elections  under  deceptive  conditions,
     6  actions  brought  pursuant to this section shall be subject to expedited
     7  pretrial and trial proceedings and receive an automatic calendar prefer-
     8  ence. In any action alleging a violation of  this  section  in  which  a
     9  plaintiff  party  seeks  preliminary  relief with respect to an upcoming
    10  election, the court shall grant relief if it determines that:
    11    (a) plaintiffs are more likely than not to succeed on the merits; and
    12    (b) it is possible to  implement  an  appropriate  remedy  that  would
    13  resolve the alleged violation in the upcoming election.
    14    7.  It  shall  be  an affirmative defense for any action brought under
    15  this section that the materially deceptive media includes  a  disclosure
    16  stating,  "This (image/video/audio) has been manipulated" in the follow-
    17  ing manner:
    18    (a) for visual media, the text of the disclosure must  appear  in  the
    19  same language and in a size easily readable by the average viewer and no
    20  smaller than the largest font size of other text appearing in the visual
    21  media.  If the visual media does not include any other text, the disclo-
    22  sure must appear in a size that is easily readable by the average  view-
    23  er. For visual media that is a video, the disclosure must appear for the
    24  duration of the video in the same language used in the video; or
    25    (b)  if  the media consists of audio only, the disclosure must be read
    26  in a clearly spoken manner and in a pitch that can be  easily  heard  by
    27  the  average  listener, at the beginning of the audio, at the end of the
    28  audio, and, if the audio is greater than two minutes in  length,  inter-
    29  spersed  within the audio at intervals of not more than two minutes each
    30  and in the same language as the rest of the audio.
    31    8. (a) This section does not apply to a radio or television broadcast-
    32  ing  station,  including  a  cable  or  satellite  television  operator,
    33  programmer,  or  producer,  that  broadcasts  a deceptive and fraudulent
    34  deepfake prohibited by this section as part of  a  bona  fide  newscast,
    35  news  interview,  news documentary, or on-the-spot coverage of bona fide
    36  news events, if the broadcast clearly acknowledges through content or  a
    37  disclosure,  in a manner that can be easily heard or read by the average
    38  listener or viewer, the materially deceptive audio or visual media  does
    39  not accurately represent the speech or conduct of the candidate.
    40    (b)  This section does not apply to a radio or television broadcasting
    41  station, including a cable or satellite television operator, programmer,
    42  or producer, when it is paid to broadcast  a  deceptive  and  fraudulent
    43  deepfake  and  has  made  a  good  faith  effort  to  establish that the
    44  depiction is not materially deceptive media.
    45    (c) This section does not apply to an internet website, or a regularly
    46  published newspaper, magazine, or other  periodical  of  general  circu-
    47  lation,  including an internet or electronic publication, that routinely
    48  carries news and commentary of  general  interest,  and  that  publishes
    49  materially  deceptive  audio or visual media prohibited by this section,
    50  if the publication clearly states that the materially deceptive audio or
    51  visual media does not accurately represent the speech or conduct of  the
    52  candidate.
    53    (d) This section does not apply to materially deceptive audio or visu-
    54  al media that constitutes satire or parody.
    55    9. Nothing in this section shall be construed to limit, or to enlarge,
    56  the  protections that 47 U.S.C. § 230 confers on an interactive computer

        S. 8631                             3
     1  service for content provided by another information content provider, as
     2  such terms are defined in 47 U.S.C. § 230.
     3    § 3. If any provision of this section or its application to any person
     4  or  circumstance  is held invalid, the invalidity shall not affect other
     5  provisions or applications of this section which  can  be  given  effect
     6  without  the  invalid  provision  or  application,  and  to this end the
     7  provisions of this section are severable.
     8    § 4. This act shall take effect immediately.
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