S T A T E O F N E W Y O R K
________________________________________________________________________
210--E
Cal. No. 26
1995-1996 Regular Sessions
I N S E N A T E
(PREFILED)
January 4, 1995
___________
Introduced by Sens. SEARS, COOK, DeFRANCISCO, DiCARLO, GOODMAN, HOLLAND,
KRUGER, LARKIN, LEIBELL, LIBOUS, MALTESE, MARCHI, PADAVAN, RATH,
SALAND, SEWARD, SKELOS, TRUNZO, TULLY, VELELLA, VOLKER, GOLD, MARKOW-
ITZ, MENDEZ, MONTGOMERY, NANULA, STACHOWSKI, WALDON, LACK, MAZIARZ,
BABBUSH, KUHL, LAVALLE, LEVY, MARCELLINO, ONORATO, PATERSON, PRESENT
-- read twice and ordered printed, and when printed to be committed to
the Committee on Codes -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- reported favorably from said committee, ordered
to first and second report, ordered to a third reading, amended and
ordered reprinted, retaining its place in the order of third reading
-- passed by Senate and delivered to the Assembly, recalled, vote
reconsidered, restored to third reading, amended and ordered
reprinted, retaining its place in the order of third reading -- recom-
mitted to the Committee on Codes in accordance with Senate Rule 6,
sec. 8 -- ordered to a third reading, passed by Senate and delivered
to Assembly, substituted for Assembly No. 3967-B, passed by Assembly,
recalled from Assembly, vote reconsidered, restored to third reading,
amended and ordered reprinted, retaining its place in the order of
third reading
AN ACT to amend the penal law, in relation to disseminating indecent
material to minors through any computer communication system
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The section heading and subdivision 1 of section 235.15 of
2 the penal law, as amended by chapter 1031 of the laws of 1971, are
3 amended to read as follows:
4 Obscenity OR DISSEMINATING INDECENT MATERIAL TO MINORS IN THE SECOND
5 DEGREE; defense.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
{ } is old law to be omitted.
LBD02841-18-6
S. 210--E 2
1 1. In any prosecution for obscenity, OR DISSEMINATING INDECENT MATERI-
2 AL TO MINORS IN THE SECOND DEGREE IN VIOLATION OF SUBDIVISION THREE OF
3 SECTION 235.21 OF THIS ARTICLE, it is an affirmative defense that the
4 persons to whom allegedly obscene OR INDECENT material was dissem-
5 inated, or the audience to an allegedly obscene performance, consisted
6 of persons or institutions having scientific, educational, governmental
7 or other similar justification for possessing, DISSEMINATING or viewing
8 the same.
9 S 2. The opening paragraph of section 235.20 of the penal law, as
10 added by chapter 791 of the laws of 1967, is amended to read as follows:
11 The following definitions are applicable to sections 235.21 {and},
12 235.22, 235.23 AND 235.24 OF THIS ARTICLE:
13 S 3. Section 235.20 of the penal law is amended by adding a new subdi-
14 vision 7 to read as follows:
15 7. THE TERM "ACCESS SOFTWARE" MEANS SOFTWARE (INCLUDING CLIENT OR
16 SERVER SOFTWARE) OR ENABLING TOOLS THAT DO NOT CREATE OR PROVIDE THE
17 CONTENT OF THE COMMUNICATION BUT THAT ALLOW A USER TO DO ANY ONE OR MORE
18 OF THE FOLLOWING:
19 (A) FILTER, SCREEN, ALLOW OR DISALLOW CONTENT;
20 (B) PICK, CHOOSE, ANALYZE OR DIGEST CONTENT; OR
21 (C) TRANSMIT, RECEIVE, DISPLAY, FORWARD, CACHE, SEARCH, SUBSET, ORGAN-
22 IZE, REORGANIZE OR TRANSLATE CONTENT.
23 S 4. The section heading, the opening paragraph, paragraph (c) of
24 subdivision 2 and the closing paragraph of section 235.21 of the penal
25 law, as amended by chapter 582 of the laws of 1969, are amended to read
26 as follows:
27 Disseminating indecent material to minors IN THE SECOND DEGREE.
28 A person is guilty of disseminating indecent material to minors IN THE
29 SECOND DEGREE when:
30 (c) Admits a minor for a monetary consideration to premises whereon
31 there is exhibited or to be exhibited such motion picture show or other
32 presentation{.}; OR
33 Disseminating indecent material to minors IN THE SECOND DEGREE is a
34 class E felony.
35 S 5. Section 235.21 of the penal law is amended by adding a new subdi-
36 vision 3 to read as follows:
37 3. KNOWING THE CHARACTER AND CONTENT OF THE COMMUNICATION WHICH, IN
38 WHOLE OR IN PART, DEPICTS ACTUAL OR SIMULATED NUDITY, SEXUAL CONDUCT OR
39 SADO-MASOCHISTIC ABUSE, AND WHICH IS HARMFUL TO MINORS, HE INTENTIONALLY
40 USES ANY COMPUTER COMMUNICATION SYSTEM ALLOWING THE INPUT, OUTPUT, EXAM-
41 INATION OR TRANSFER, OF COMPUTER DATA OR COMPUTER PROGRAMS FROM ONE
42 COMPUTER TO ANOTHER, TO INITIATE OR ENGAGE IN SUCH COMMUNICATION WITH A
43 PERSON WHO IS A MINOR.
44 S 6. Section 235.22 of the penal law is renumbered section 235.23 and
45 a new section 235.22 is added to read as follows:
46 S 235.22 DISSEMINATING INDECENT MATERIAL TO MINORS IN THE FIRST DEGREE.
47 A PERSON IS GUILTY OF DISSEMINATING INDECENT MATERIAL TO MINORS IN THE
48 FIRST DEGREE WHEN:
49 1. KNOWING THE CHARACTER AND CONTENT OF THE COMMUNICATION WHICH, IN
50 WHOLE OR IN PART, DEPICTS ACTUAL OR SIMULATED NUDITY, SEXUAL CONDUCT OR
51 SADO-MASOCHISTIC ABUSE, AND WHICH IS HARMFUL TO MINORS, HE INTENTIONALLY
52 USES ANY COMPUTER COMMUNICATION SYSTEM ALLOWING THE INPUT, OUTPUT, EXAM-
53 INATION OR TRANSFER, OF COMPUTER DATA OR COMPUTER PROGRAMS FROM ONE
54 COMPUTER TO ANOTHER, TO INITIATE OR ENGAGE IN SUCH COMMUNICATION WITH A
55 PERSON WHO IS A MINOR; AND
S. 210--E 3
1 2. BY MEANS OF SUCH COMMUNICATION HE IMPORTUNES, INVITES OR INDUCES A
2 MINOR TO ENGAGE IN SEXUAL INTERCOURSE, DEVIATE SEXUAL INTERCOURSE, OR
3 SEXUAL CONTACT WITH HIM, OR TO ENGAGE IN A SEXUAL PERFORMANCE, OBSCENE
4 SEXUAL PERFORMANCE, OR SEXUAL CONDUCT FOR HIS BENEFIT.
5 DISSEMINATING INDECENT MATERIAL TO MINORS IN THE FIRST DEGREE IS A
6 CLASS D FELONY.
7 S 7. Section 235.23 of the penal law, as added by chapter 791 of the
8 laws of 1967 and as renumbered by section six of this act, is amended to
9 read as follows:
10 S 235.23 Disseminating indecent material to minors; presumption and
11 {defense} DEFENSES.
12 1. A person who engages in the conduct proscribed by section 235.21
13 is presumed to do so with knowledge of the character and content of the
14 material sold or loaned, or the motion picture, show or presentation
15 exhibited or to be exhibited.
16 2. In any prosecution for disseminating indecent material to minors IN
17 THE SECOND DEGREE PURSUANT TO SUBDIVISION ONE OR TWO OF SECTION 235.21
18 OF THIS ARTICLE, it is an affirmative defense that:
19 (a) The defendant had reasonable cause to believe that the minor
20 involved was seventeen years old or more; and
21 (b) Such minor exhibited to the defendant a draft card, driver`s
22 license, birth certificate or other official or apparently official
23 document purporting to establish that such minor was seventeen years old
24 or more.
25 3. IN ANY PROSECUTION FOR DISSEMINATING INDECENT MATERIAL TO MINORS IN
26 THE SECOND DEGREE PURSUANT TO SUBDIVISION THREE OF SECTION 235.21 OF
27 THIS ARTICLE OR DISSEMINATING INDECENT MATERIAL TO MINORS IN THE FIRST
28 DEGREE PURSUANT TO SECTION 235.22 OF THIS ARTICLE, IT SHALL BE A DEFENSE
29 THAT:
30 (A) THE DEFENDANT MADE A REASONABLE EFFORT TO ASCERTAIN THE TRUE AGE
31 OF THE MINOR AND WAS UNABLE TO DO SO AS A RESULT OF ACTIONS TAKEN BY THE
32 MINOR; OR
33 (B) THE DEFENDANT HAS TAKEN, IN GOOD FAITH, REASONABLE, EFFECTIVE AND
34 APPROPRIATE ACTIONS UNDER THE CIRCUMSTANCES TO RESTRICT OR PREVENT
35 ACCESS BY MINORS TO MATERIALS SPECIFIED IN SUCH SUBDIVISION, WHICH MAY
36 INVOLVE ANY APPROPRIATE MEASURES TO RESTRICT MINORS FROM ACCESS TO SUCH
37 COMMUNICATIONS, INCLUDING ANY METHOD WHICH IS FEASIBLE UNDER AVAILABLE
38 TECHNOLOGY; OR
39 (C) THE DEFENDANT HAS RESTRICTED ACCESS TO SUCH MATERIALS BY REQUIRING
40 USE OF A VERIFIED CREDIT CARD, DEBIT ACCOUNT, ADULT ACCESS CODE OR ADULT
41 PERSONAL IDENTIFICATION NUMBER; OR
42 (D) THE DEFENDANT HAS IN GOOD FAITH ESTABLISHED A MECHANISM SUCH THAT
43 THE LABELLING, SEGREGATION OR OTHER MECHANISM ENABLES SUCH MATERIAL TO
44 BE AUTOMATICALLY BLOCKED OR SCREENED BY SOFTWARE OR OTHER CAPABILITIES
45 REASONABLY AVAILABLE TO RESPONSIBLE ADULTS WISHING TO EFFECT SUCH BLOCK-
46 ING OR SCREENING AND THE DEFENDANT HAS NOT OTHERWISE SOLICITED MINORS
47 NOT SUBJECT TO SUCH SCREENING OR BLOCKING CAPABILITIES TO ACCESS THAT
48 MATERIAL OR TO CIRCUMVENT ANY SUCH SCREENING OR BLOCKING.
49 S 8. The penal law is amended by adding a new section 235.24 to read
50 as follows:
51 S 235.24 DISSEMINATING INDECENT MATERIAL TO MINORS; LIMITATIONS.
52 IN ANY PROSECUTION FOR DISSEMINATING INDECENT MATERIAL TO MINORS IN
53 THE SECOND DEGREE PURSUANT TO SUBDIVISION THREE OF SECTION 235.21 OF
54 THIS ARTICLE OR DISSEMINATING INDECENT MATERIAL TO MINORS IN THE FIRST
55 DEGREE PURSUANT TO SECTION 235.22 OF THIS ARTICLE:
S. 210--E 4
1 1. NO PERSON SHALL BE HELD TO HAVE VIOLATED SUCH PROVISIONS SOLELY FOR
2 PROVIDING ACCESS OR CONNECTION TO OR FROM A FACILITY, SYSTEM, OR NETWORK
3 NOT UNDER THAT PERSON`S CONTROL, INCLUDING TRANSMISSION, DOWNLOADING,
4 INTERMEDIATE STORAGE, ACCESS SOFTWARE, OR OTHER RELATED CAPABILITIES
5 THAT ARE INCIDENTAL TO PROVIDING SUCH ACCESS OR CONNECTION THAT DO NOT
6 INCLUDE THE CREATION OF THE CONTENT OF THE COMMUNICATION.
7 (A) THE LIMITATIONS PROVIDED BY THIS SUBDIVISION SHALL NOT BE APPLICA-
8 BLE TO A PERSON WHO IS A CONSPIRATOR WITH AN ENTITY ACTIVELY INVOLVED IN
9 THE CREATION OR KNOWING DISTRIBUTION OF COMMUNICATIONS THAT VIOLATE SUCH
10 PROVISIONS, OR WHO KNOWINGLY ADVERTISES THE AVAILABILITY OF SUCH COMMU-
11 NICATIONS.
12 (B) THE LIMITATIONS PROVIDED BY THIS SUBDIVISION SHALL NOT BE APPLICA-
13 BLE TO A PERSON WHO PROVIDES ACCESS OR CONNECTION TO A FACILITY, SYSTEM,
14 OR NETWORK ENGAGED IN THE VIOLATION OF SUCH PROVISIONS THAT IS OWNED OR
15 CONTROLLED BY SUCH PERSON.
16 2. NO EMPLOYER SHALL BE HELD LIABLE UNDER SUCH PROVISIONS FOR THE
17 ACTIONS OF AN EMPLOYEE OR AGENT UNLESS THE EMPLOYEE`S OR AGENT`S CONDUCT
18 IS WITHIN THE SCOPE OF HIS EMPLOYMENT OR AGENCY AND THE EMPLOYER HAVING
19 KNOWLEDGE OF SUCH CONDUCT, AUTHORIZES OR RATIFIES SUCH CONDUCT, OR RECK-
20 LESSLY DISREGARDS SUCH CONDUCT.
21 S 9. This act shall take effect on the first day of November next
22 succeeding the date on which it shall have become a law.
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