Bill Text: NJ A3540 | 2024-2025 | Regular Session | Amended
Bill Title: Establishes criminal penalties for production or dissemination of deceptive audio or visual media, commonly known as "deepfakes."
Spectrum: Partisan Bill (Democrat 16-0)
Status: (Engrossed) 2024-09-19 - Received in the Senate without Reference, 2nd Reading [A3540 Detail]
Download: New_Jersey-2024-A3540-Amended.html
[Second Reprint]
ASSEMBLY COMMITTEE SUBSTITUTE FOR
ASSEMBLY, No. 3540
STATE OF NEW JERSEY
221st LEGISLATURE
ADOPTED MAY 20, 2024
Sponsored by:
Assemblyman HERB CONAWAY, JR.
District 7 (Burlington)
Assemblyman LOUIS D. GREENWALD
District 6 (Burlington and Camden)
Assemblywoman ELLEN J. PARK
District 37 (Bergen)
Co-Sponsored by:
Assemblywomen Quijano, Haider, Assemblymen Karabinchak and Wimberly
SYNOPSIS
Establishes criminal penalties for production or dissemination of deceptive audio or visual media, commonly known as "deepfakes."
CURRENT VERSION OF TEXT
As reported by the Assembly Budget Committee on June 26, 2024, with amendments.
An Act establishing criminal penalties for the production and dissemination of deceptive audio or visual media and supplementing Title 2C of the New Jersey Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. a. As used in P.L. , c. (C. ) (pending before the Legislature as this bill):
"Deceptive audio or visual media" means any video recording, motion picture film, sound recording, electronic image, photograph, any technological representation of speech or conduct substantially derivative thereof, or any forgery or facsimile of a document or writing, that appears to a reasonable person to realistically depict any speech, conduct, or writing of a person who did not in fact engage in the speech, conduct, or writing, 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.
"Disclose" means to sell, 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 or not for pecuniary gain.
"Interactive computer service provider" shall have the same meaning as set forth in 47 U.S.C. s.230.
"Solicit" means to offer to create or generate, or to advertise the ability to create or generate, a work of deceptive audio or visual media, whether or not for hire, commission, monetary remuneration, or pecuniary gain. "Solicit" shall also mean to request the creation or generation of a work of deceptive audio or visual media, whether or not for monetary remuneration or compensation.
"Victim" means a person who suffers personal, physical, or psychological injury or death or incurs loss of or injury to personal or real property as a result of the conduct of another that would constitute a violation of subsections b. or c. of this section. "Victim" also includes the spouse, parent, legal guardian, grandparent, child, sibling, domestic partner, or civil union partner of the decedent in the case of a person's death.
"Video streaming service" means a service that transmits video content over the Internet that is played continuously without download.
b. A natural person commits a crime of the third degree if, without license or privilege to do so, the person generates or creates, or causes to be generated or created, a work of deceptive audio or visual media with the intent that it be used as part of a plan or course of conduct to commit any crime or offense, including but not limited to:
(1) a crime or offense under chapters 14, 16, 20, 21, 28, or 29 of Title 2C of the New Jersey Statutes;
(2) advertising commercial sex abuse of a minor, pursuant to subsection b. of section 12 of P.L.2013, c.51 (C.2C:13-10);
(3) endangering the welfare of children, pursuant to N.J.S.2C:24-4;
(4) threats or improper influence in official and political matters, pursuant to N.J.S.2C:27-3;
(5) false public alarms, pursuant to N.J.S.2C:33-3;
(6) harassment, pursuant to N.J.S.2C:33-4;
(7) cyber-harassment, pursuant to section 1 of P.L.2013, c.272 (C.2C:33-4.1); or
(8) hazing, pursuant to section 1 of P.L.1980, c.169 (C.2C:40-3).
The trier of fact may infer that a work of deceptive audio or visual media was generated or created without license or privilege to do so if the work was generated or created using a commercially or publicly available generative artificial intelligence system in violation of the terms of service, terms of use, or end user license agreement of the system.
c. (1) A natural person commits a crime of the third degree if, without license or privilege to do so, the person solicits, discloses, or uses a work of deceptive audio or visual media as part of a plan or course of conduct to commit any crime or offense, including but not limited to any crime or offense listed in subsection b. of this section.
(2) 2[A] Except as otherwise provided in subsection g. of this section, a2 natural person commits a crime of the third degree if, without license or privilege to do so, the person discloses a work of deceptive audio or visual media that the person knows or reasonably should know was created in violation of subsection b. of this section.
d. In addition to any term of imprisonment imposed pursuant to N.J.S.2C:43-6 and notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $30,000 may be imposed for a violation of this section.
e. Notwithstanding the provisions of N.J.S.2C:1-8 or any other provisions of law:
(1) 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. of this section merge with a conviction under subsection b. of this section; and
(2) a conviction arising under subsection b. or paragraph (1) of subsection c. of this section shall not merge with a conviction of any underlying offense, nor shall any conviction for such underlying offense merge with a conviction under subsection b. of this section. The court shall impose 2[separate] consecutive2 sentences upon a conviction under subsection b. or paragraph (1) of subsection c. of this section and a conviction of any underlying offense.
f. A 1natural1 person who violates the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill) shall be liable to the victim of the violation, and the victim may bring a civil action in the Superior Court. The court may award:
(1) actual damages, but not less than liquidated damages computed at the rate of $1,000 for each violation of P.L. , c. (C. ) (pending before the Legislature as this bill);
(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) other such preliminary and equitable relief as the court determines appropriate.
A conviction for a violation of P.L. , c. (C. ) (pending before the Legislature as this bill) shall not be a prerequisite for a civil action brought pursuant to this subsection. The civil action authorized by this subsection shall be in addition to, and not in lieu of, any other civil action, injunctive relief, or other remedy available at law, including, but not limited to, a civil action for common law defamation, libel, slander, invasion of privacy, false light, misappropriation of identity, intrusion of privacy, or public disclosure of private facts.
g. (1) 2[It shall be deemed a fair use and shall not be a violation of]2 P.L. , c. (C. ) (pending before the Legislature as this bill) 2[if a work of deceptive audio or visual media1[,] is1 clearly identified as a work of deceptive audio or visual media 1or, if the deceptive nature of the work is unknown or unverified, but is clearly identified as a possible work of deceptive audio or visual media1, is disclosed in connection with] shall not apply to content that constitutes2 criticism, comment, satire, parody, news reporting, teaching, scholarship, or research 2[, pursuant to 17 U.S.C. s.107] that a reasonable viewer or listener would not believe to authentically depict speech or conduct2.
(2) P.L. , c. (C. ) (pending before the Legislature as this bill) 1shall not apply to an interactive computer service provider, cloud services provider, or commercial developer or provider of artificial intelligence technology 2, where such developer or provider is not deemed to be a publisher, speaker, or information content provider pursuant to 47 U.S.C. s.2302, and1 shall not be construed to alter or negate any rights, obligations, or immunities of an interactive computer service provider 1or cloud services provider1 pursuant to 47 U.S.C. s.2301[, and shall not apply to a commercial developer or provider of artificial intelligence technology, provided that to the extent the provider or developer allows for the public dissemination of consumer generated media as that term is defined pursuant to paragraph (14) of 47 U.S.C. s.153, the provider or developer exercises commercially reasonable efforts to ensure that consumer generated media does not violate this section].1
(3) P.L. , c. (C. ) (pending before the Legislature as this bill) shall not apply to any broadcasting station, cable service, radio station, telecommunications carrier, or television station, as those terms are defined pursuant to 47 U.S.C. s.153, or to any billboard, Internet website, mobile application, video streaming service, newspaper, magazine, publication, 2[or]2 printed matter 2, or other advertising channel or medium2 through which an advertisement containing deceptive audio or visual media appears 2, where the advertising channel or medium's role in disclosing the advertisement is limited to the selling of advertising time or space, or where an advertising channel or medium is prohibited by federal law from censoring the advertisement regardless of its content2 1[, when the owner, publisher, or operator of the advertising medium has no knowledge of the intent, design, or purpose of the advertiser]1.
(4) This section shall not apply to any broadcasting station, including a cable or satellite television company, programmer, or producer, an Internet website, 2video streaming service,2 or a regularly published newspaper, magazine, or other periodical of general circulation, including an Internet or electronic publication, that routinely carries news and commentary of general interest, and that broadcasts or publishes any deceptive audio or visual media prohibited by this section 2solely2 for the purpose of disseminating newsworthy facts; provided that 2if the deceptive nature of the work is known or verified,2 the broadcast or publication shall clearly contain a disclaimer which is either shown or read aloud that identifies 2the work as a work of2 deceptive audio or visual media 2[and states that the deceptive audio or visual media contains manipulated images or sound]2. 2[1If the deceptive nature of the work is unknown or unverified, the broadcast or publication shall clearly contain a disclaimer which is either shown or read aloud that identifies the work as a possible work of deceptive audio or visual media.1]2
(5) It shall not be a violation of this section to disclose any deceptive audio or visual media to law enforcement officers in connection with a criminal investigation or prosecution of a violation of this section1[, or];1 pursuant to a subpoena or court order requiring the disclosure of a work of deceptive audio or visual media1; or in furtherance of an investigation concerning fraud, cybersecurity, identity theft, harassment, or a violation of a commercial computer network's contractual terms of service1.
2. This act shall take effect immediately.
