Bill Text: NJ A1892 | 2024-2025 | Regular Session | Introduced
Bill Title: Prohibits deepfake pornography and imposes criminal and civil penalties for non-consensual disclosure.
Spectrum: Bipartisan Bill
Status: (Introduced) 2024-03-04 - Reported and Referred to Assembly Judiciary Committee [A1892 Detail]
Download: New_Jersey-2024-A1892-Introduced.html
STATE OF NEW JERSEY
221st LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2024 SESSION
Sponsored by:
Assemblyman HERB CONAWAY, JR.
District 7 (Burlington)
Assemblyman REGINALD W. ATKINS
District 20 (Union)
Assemblywoman ELLEN J. PARK
District 37 (Bergen)
SYNOPSIS
Prohibits deepfake pornography and imposes criminal and civil penalties for non-consensual disclosure.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel.
An Act concerning the non-consensual disclosure of deepfake pornography and amending P.L.2003, c.206 and N.J.S.2C:24-4.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 1 of P.L.2003, c.206 (C.2C:14-9) is amended to read as follows:
1. a. An actor commits a crime of the fourth degree if, knowing that he is not licensed or privileged to do so, and under circumstances in which a reasonable person would know that another may expose intimate parts or may engage in sexual penetration or sexual contact, he observes another person without that person's consent and under circumstances in which a reasonable person would not expect to be observed.
b. (1) An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person's consent and under circumstances in which a reasonable person would not expect to be observed.
(2) An actor commits a crime of the fourth degree if, knowing that he is not licensed or privileged to do so, he photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of the undergarment-clad intimate parts of another person, without that person's consent and under circumstances in which a reasonable person would not expect to have his undergarment-clad intimate parts observed.
c. An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image, taken in violation of subsection b. of this section, or any deceptive audio or visual media, of: (1) another person who is engaged in an act of sexual penetration or sexual contact; (2) another person whose intimate parts are exposed; or (3) another person's undergarment-clad intimate parts, unless that person has consented to such disclosure.
For purposes of this subsection:
(1) "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise, offer, share, or make available via the Internet or by any other means, whether for pecuniary gain or not; [and]
(2) "intimate parts" has the meaning ascribed to it in N.J.S.2C:14-1; and
(3) "deceptive audio or visual media" means any video recording, motion picture film, sound recording, electronic image, or photograph, or any technological representation of speech or conduct substantially derivative thereof that appears to authentically depict any speech or conduct of a person who did not in fact engage in the speech or conduct and the production of which was substantially dependent upon technical means, rather than the ability of another person to physically or verbally impersonate the person.
Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine not to exceed $30,000 may be imposed for a violation of this subsection.
d. It is an affirmative defense to a crime under this section that:
(1) the actor posted or otherwise provided prior notice to the person of the actor's intent to engage in the conduct specified in subsection a., b., or c., and
(2) the actor acted with a lawful purpose.
e. (1) It shall not be a violation of subsection a. or b. to observe another person in the access way, foyer or entrance to a fitting room or dressing room operated by a retail establishment or to photograph, film, videotape, record or otherwise reproduce the image of such person, if the actor conspicuously posts at the entrance to the fitting room or dressing room prior notice of his intent to make the observations, photographs, films, videotapes, recordings or other reproductions.
(2) It shall be a violation of subsection c. to disclose in any manner any such photograph, film, videotape or recording of another person using a fitting room or dressing room except under the following circumstances:
(a) to law enforcement officers in connection with a criminal prosecution;
(b) pursuant to subpoena or court order for use in a legal proceeding; or
(c) to a co-worker, manager or supervisor acting within the scope of his employment.
f. It shall be a violation of subsection a. or b. to observe another person in a private dressing stall of a fitting room or dressing room operated by a retail establishment or to photograph, film, videotape, record or otherwise reproduce the image of another person in a private dressing stall of a fitting room or dressing room.
g. For purposes of this act, a law enforcement officer, or a corrections officer or guard in a correctional facility or jail, who is engaged in the official performance of his duties shall be deemed to be licensed or privileged to make and to disclose observations, photographs, films, videotapes, recordings or any other reproductions.
h. Notwithstanding the provisions of N.J.S.2C:1-8 or any other provisions of law, a conviction arising under subsection b. of this section shall not merge with a conviction under subsection c. of this section, nor shall a conviction under subsection c. merge with a conviction under subsection b.
(cf: P.L.2016, c.2, s.1)
2. N.J.S.2C:24-4 is amended to read as follows:
2C:24-4. a. (1) Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this paragraph to a child is guilty of a crime of the third degree.
(2) Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who causes the child harm that would make the child an abused or neglected child as defined in R.S.9:6-1, R.S.9:6-3, and section 1 of P.L.1974, c.119 (C.9:6-8.21) is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this paragraph to a child is guilty of a crime of the third degree.
b. (1) As used in this subsection:
"Child" means any person under 18 years of age.
"Deceptive audio or visual media" means any video recording, motion picture film, sound recording, electronic image, or photograph, or any technological representation of speech or conduct substantially derivative thereof that appears to authentically depict any speech or conduct of a person who did not in fact engage in the speech or conduct and the production of which was substantially dependent upon technical means, rather than the ability of another person to physically or verbally impersonate the person.
"Distribute" means to sell, or to manufacture, give, provide, lend, trade, mail, deliver, publish, circulate, disseminate, present, exhibit, display, share, advertise, offer, or make available via the Internet or by any other means, whether for pecuniary gain or not. The term also includes an agreement or attempt to distribute.
"File-sharing program" means a computer program, application, software or operating system that allows the user of a computer on which such program, application, software or operating system is installed to designate files as available for searching by and copying to one or more other computers, to transmit such designated files directly to one or more other computers, and to request the transmission of such designated files directly from one or more other computers. The term "file-sharing program" includes but is not limited to a computer program, application or software that enables a computer user to participate in a peer-to-peer network.
"Internet" means the international computer network of both federal and non-federal interoperable packet switched data networks.
"Item depicting the sexual exploitation or abuse of a child" means a photograph, film, video, an electronic, electromagnetic or digital recording, an image stored or maintained in a computer program or file or in a portion of a file, or any deceptive audio or visual media, or any other reproduction or reconstruction which :
(a) depicts a child engaging in a prohibited sexual act or in the simulation of such an act; or
(b) portrays a child in a sexually suggestive manner.
"Peer-to-peer network" means a connection of computer systems through which files are shared directly between the systems on a network without the need of a central server.
"Portray a child in a sexually suggestive manner" means:
(a) to depict a child's less than completely and opaquely covered intimate parts, as defined in N.J.S.2C:14-1, in a manner that, by means of the posing, composition, format, or animated sensual details, emits sensuality with sufficient impact to concentrate prurient interest on the child; or
(b) to depict any form of contact with a child's intimate parts, as defined in N.J.S.2C:14-1, in a manner that, by means of the posing, composition, format, or animated sensual details, emits sensuality with sufficient impact to concentrate prurient interest on the child; or
(c) to otherwise depict a child for the purpose of sexual stimulation or gratification of any person who may view the depiction where the depiction does not have serious literary, artistic, political, or scientific value.
"Prohibited sexual act" means
(a) Sexual intercourse; or
(b) Anal intercourse; or
(c) Masturbation; or
(d) Bestiality; or
(e) Sadism; or
(f) Masochism; or
(g) Fellatio; or
(h) Cunnilingus; or
(i) Nudity, if depicted for the purpose of sexual stimulation or gratification of any person who may view such depiction; or
(j) Any act of sexual penetration or sexual contact as defined in N.J.S.2C:14-1.
"Reproduction" means, but is not limited to, computer generated images.
(2) (Deleted by amendment, P.L.2001, c.291).
(3) A person commits a crime of the first degree if he causes or permits a child to engage in a prohibited sexual act or in the simulation of such an act or to be portrayed in a sexually suggestive manner if the person knows, has reason to know or intends that the prohibited act or portrayal may be photographed, filmed, reproduced, or reconstructed in any manner, including on the Internet, or may be part of an exhibition or performance.
(4) A person commits a crime of the second degree if he photographs or films a child in a prohibited sexual act or in the simulation of such an act or for portrayal in a sexually suggestive manner or who uses any device, including a computer, to reproduce or reconstruct the image of a child in a prohibited sexual act or in the simulation of such an act or for portrayal in a sexually suggestive manner.
(5) (a) A person commits a crime if, by any means, including but not limited to the Internet, he:
(i) knowingly distributes an item depicting the sexual exploitation or abuse of a child;
(ii) knowingly possesses an item depicting the sexual exploitation or abuse of a child with the intent to distribute that item; or
(iii) knowingly stores or maintains an item depicting the sexual exploitation or abuse of a child using a file-sharing program which is designated as available for searching by or copying to one or more other computers.
In a prosecution under sub-subparagraph (iii) of this subparagraph, the State shall not be required to offer proof that an item depicting the sexual exploitation or abuse of a child had actually been searched, copied, transmitted or viewed by another user of the file-sharing program, or by any other person, and it shall be no defense that the defendant did not intend to distribute the item to another user of the file-sharing program or to any other person. Nor shall the State be required to prove that the defendant was aware that the item depicting the sexual exploitation or abuse of a child was available for searching or copying to one or more other computers, and the defendant shall be strictly liable for failing to designate the item as not available for searching or copying by one or more other computers.
A violation of this subparagraph that involves 1,000 or more items depicting the sexual exploitation or abuse of a child is a crime of the first degree; otherwise it is a crime of the second degree.
Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6, a person whose offense under this subparagraph involved at least 25 but less than 1,000 items depicting the sexual exploitation or abuse of a child shall be sentenced to a mandatory minimum term of imprisonment, which shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or five years, whichever is greater, during which the defendant shall be ineligible for parole.
Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6, a person whose offense under this subparagraph involved 1,000 or more items depicting the sexual exploitation or abuse of a child shall be sentenced to a mandatory minimum term of imprisonment, which shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or 10 years, whichever is greater, during which the defendant shall be ineligible for parole.
Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6, a person convicted of a second or subsequent offense under this subparagraph shall be sentenced to an extended term of imprisonment as set forth in N.J.S.2C:43-7. For the purposes of this subparagraph, an offense is considered a second or subsequent offense if the actor has at any time been convicted pursuant to paragraph (3), (4), or (5) of this subsection, or under any similar statute of the United States, this State, or any other state for an offense that is substantially equivalent to paragraph (3), (4), or (5) of this subsection.
For purposes of this subparagraph, the term "possess" includes receiving, viewing, or having under one's control, through any means, including the Internet.
(b) (i) A person commits a crime of the first degree if he knowingly possesses, knowingly views, or knowingly has under his control, through any means, including the Internet, 100,000 or more items depicting the sexual exploitation or abuse of a child.
(ii) A person commits a crime of the second degree if he knowingly possesses, knowingly views, or knowingly has under his control, through any means, including the Internet, at least 1,000 but less than 100,000 items depicting the sexual exploitation or abuse of a child.
(iii) A person commits a crime of the third degree if he knowingly possesses, knowingly views, or knowingly has under his control, through any means, including the Internet, less than 1,000 items depicting the sexual exploitation or abuse of a child.
Notwithstanding the provisions of subsection e. of N.J.S.2C:44-1, in any instance where a person was convicted of an offense under this subparagraph that involved 100 or more items depicting the sexual exploitation or abuse of a child, the court shall impose a sentence of imprisonment unless, having regard to the character and condition of the defendant, it is of the opinion that imprisonment would be a serious injustice which overrides the need to deter such conduct by others.
Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6, a person convicted of a second or subsequent offense under this subparagraph shall be sentenced to an extended term of imprisonment as set forth in N.J.S.2C:43-7. For the purposes of this subparagraph, an offense is considered a second or subsequent offense if the actor has at any time been convicted pursuant to paragraph (3), (4), or (5) of this subsection, or under any similar statute of the United States, this State, or any other state for an offense that is substantially equivalent to paragraph (3), (4), or (5) of this subsection.
Nothing in this subparagraph shall be construed to preclude or limit any prosecution or conviction for the offense set forth in subparagraph (a) of this paragraph.
(6) For purposes of this subsection, a person who is depicted as or presents the appearance of being under the age of 18 in any photograph, film, videotape, computer program or file, video game, or any other reproduction or reconstruction shall be rebuttably presumed to be under the age of 18. If the child who is depicted as engaging in, or who is caused to engage in, a prohibited sexual act or simulation of a prohibited sexual act or portrayed in a sexually suggestive manner is under the age of 18, the actor shall be strictly liable and it shall not be a defense that the actor did not know that the child was under the age of 18, nor shall it be a defense that the actor believed that the child was 18 years of age or older, even if such a mistaken belief was reasonable.
(7) For aggregation purposes, each depiction of the sexual exploitation or abuse of a child shall be considered a separate item, provided that each depiction that is in the form of a photograph, picture, image, or visual depiction of a similar nature shall be considered to be one item and each depiction that is in the form of a film, video, video-clip, movie, or visual depiction of a similar nature shall be considered to be 10 separate items, and each individual act of distribution of an item depicting the sexual exploitation or abuse of a child shall be considered a separate item. For purposes of determining the number of items depicting the sexual exploitation or abuse of a child for purposes of sentencing pursuant to subparagraph (a) of paragraph (5) of this subsection, the court shall aggregate all items involved, whether the act or acts constituting the violation occurred at the same time or at different times and, with respect to distribution, whether the act or acts of distribution were to the same person or several persons or occurred at different times, provided that each individual act was committed within the applicable statute of limitations. For purposes of determining the number of items depicting the sexual exploitation or abuse of a child for purposes of sentencing pursuant to subparagraph (b) of paragraph (5) of this subsection, the court shall aggregate all items involved, whether the possession of such items occurred at the same time or at different times, provided that each individual act was committed within the applicable statute of limitations.
(cf: P.L.2017, c.141, s.1)
3. Section 2 of P.L.2003,
c.206 (C.2A:58D-1) is amended to read as follows:
2. a. An actor who, in violation of section 1 of P.L.2003, c.206 (C.2C:14-9), photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of another person who is engaged in an act of sexual penetration or sexual contact, the exposed intimate parts of another person, or the undergarment-clad intimate parts of another person shall be liable to that person, who may bring a civil action in the Superior Court.
b. An actor who, in violation of section 1 of P.L.2003, c.206 (C.2C:14-9), discloses any photograph, film, videotape, recording or any other reproduction of the image of another person, or who discloses any deceptive audio or visual media of another person, who is engaged in an act of sexual penetration or sexual contact, the exposed intimate parts of another person, or the undergarment-clad intimate parts of another person shall be liable to that person, who may bring a civil action in the Superior Court.
For purposes of this section:
(1) "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise, offer, share, or make available via the Internet or by any other means, whether for pecuniary gain or not; [and]
(2) "intimate parts" has the meaning ascribed to it in N.J.S.2C:14-1; and
(3) "deceptive audio or visual media" means any video recording, motion picture film, sound recording, electronic image, or photograph, or any technological representation of speech or conduct substantially derivative thereof that appears to authentically depict any speech or conduct of a person who did not in fact engage in the speech or conduct and the production of which was substantially dependent upon technical means, rather than the ability of another person to physically or verbally impersonate the person.
c. The court may award:
(1) actual damages, but not less than liquidated damages computed at the rate of $1,000 for each violation of this act;
(2) punitive damages upon proof of willful or reckless disregard of the law;
(3) reasonable attorney's fees and other litigation costs reasonably incurred; and
(4) such other preliminary and equitable relief as the court determines to be appropriate.
A conviction of a violation of section 1 of P.L.2003, c.206 (C.2C:14-9) shall not be a prerequisite for a civil action brought pursuant to this section.
(cf: P.L.2016, c.2, s.2)
4. This act shall take
effect immediately.
STATEMENT
This bill prohibits the emerging technological phenomenon of sexually "deceptive audio or visual media," commonly known as "deepfakes." Unlike older forms of audio or visual manipulation, the creator of a deepfake uses newer technology such as artificial intelligence with the intent of making it appear, as realistically as possible, that the person being depicted has engaged in activity that did not actually occur. Deepfakes have been intentionally used to embarrass or harass a person, or to cast that person in a false light. When the person being depicted is a child, deepfake technology has the potential to create realistic pornography involving the child.
The penalty for non-consensual disclosure of deceptive audio or visual media is the same as for non-consensual disclosure of so-called "revenge porn" under the invasion of privacy statute, which under current law is a crime of the third degree. A crime of the third degree is punishable by three to five years imprisonment, a fine of up to $15,000, or both. The penalty for deceptive audio or visual media depicting the sexual exploitation or abuse of a child is the same as for distributing, possessing, or storing child pornography, which under current law is a crime of the second degree for less than 1,000 items and a crime of the first degree for 1,000 or more items. A crime of the second degree is punishable by five to ten years imprisonment, a fine of up to $150,000, or both. A crime of the first degree is punishable by 10 to 20 years imprisonment, a fine of up to $200,000, or both.
The person depicted in the non-consensual disclosure may also bring a civil action in the Superior Court for invasion of privacy.
