BILL NUMBER: S10696
SPONSOR: FAHY
 
TITLE OF BILL:
An act to amend the penal law, in relation to the crime of promoting an
obscene sexual performance by a child
 
PURPOSE:
Relates to the crime of promoting an obscene sexual performance by a
child
Section 1 amends the penal law by adding a new subdivision 10 to
Section 263.00 to define obscene synthetic sexual performances and
include depictions of a child that do not correspond to an actual person
under this definition.
Section 2 amends Section 263.10 of the penal law by establishing that
producing, directing, or promoting an obscene synthetic sexual perform-
ance by a child is a class D felony.
Section 3 adds a severability clause such that any judgement invalidat-
ing a segment of this act will not affect the remainder.
Section 4 sets the enacting date.
 
JUSTIFICATION 
:
WITH RECENT ADVANCEMENTS IN ARTIFICIAL INTELLIGENCE (AI), VIRTUAL CHILD
SEXUAL ABUSE MATERIALS (CSAM), DIGITALLY OR COMPUTER-GENERATED SEXUAL
IMAGES OR VIDEOS OF CHILDREN, ARE BECOMING INCREASINGLY REALISTIC AND
PROLIFIC YET REMAIN UNREGULATED IF THEY DO NOT CORRESPOND TO AN IDEN-
TIFIABLE PERSON. EXISTING PENAL LAW IN NEW YORK TARGETS "DEEPFAKES,"
IMAGES OF FAKE SEXUAL EVENTS CREATED OR ALTERED BY DIGITIZATION THAT
DEPICT A REASONABLY IDENTIFIABLE PERSON, OVER A MILLION OF WHICH HAVE
FEATURED CHILDREN WORLDWIDE. HOWEVER, MATERIALS DEPICTING AN UNIDENTIFI-
ABLE, OR DIGITALLY GENERATED PERSON ARE NOT CLEARLY COVERED BY CURRENT
STATUTE EVEN IF THOSE IMAGES DEPICT WHAT IS CLEARLY A CHILD ENGAGED
SEXUALLY.
NEW YORK LAW PROHIBITS THE CREATION AND DISTRIBUTION OF TRADITIONAL CSAM
AND WAS AMENDED IN 2025 TO COVER SEXUAL PERFORMANCES "CREATED OR ALTERED
BY DIGITIZATION." HOWEVER, ARTICLE 263 INCORPORATES THE DEFINITION OF
"DIGITIZATION" IN PENAL LAW245.15, WHICH REQUIRES ALTERING THE IMAGE OF
AN ACTUAL PERSON IN A REALISTIC MANNER. AS A RESULT, THAT DEFINITION
DOES NOT ENCOMPASS WHOLLY SYNTHETIC CSAM GENERATED FROM SCRATCH THROUGH
AL, WHERE THERE IS NO SINGULAR UNDERLYING IMAGE. ADDITIONALLY, ARTICLE
263 GENERALLY REQUIRES A DEPICTED SEXUAL PERFORMANCE "BY A CHILD," WHICH
DOES NOT READILY ENCOMPASS A WHOLLY SYNTHETIC CHILD WHO DOES NOT CORRE-
SPOND TO AN ACTUAL PERSON. THIS LEAVES A GAP IN THE CURRENT LAW FOR THE
CREATION AND DISTRIBUTION OF WHOLLY SYNTHETIC AI-GENERATED CSAM.
IN THE RECENT CASE, UNITED STATES V. ANDEREGG, THE SEVENTH CIRCUIT RULED
THAT THE FIRST AMENDMENT DOES NOT ALLOW THE GOVERNMENT TO PROSCRIBE THE
IN-HOME POSSESSION OF OBSCENE VIRTUAL CSAM DEPICTING A "VIRTUAL" OR
UNIDENTIFIABLE CHILD, YET LEFT INTACT COUNTS ALLEGING THE ILLEGAL
PRODUCTION, DISTRIBUTION, AND TRANSFER OF CSAM MATERIALS TO A MINOR. THE
INTENT OF THIS BILL IS TO ENSURE NEW YORK STATE LAW COMPLIES WITH THE
COURT'S DECISION TO UPHOLD FIRST AMENDMENT RIGHTS REGARDING THE
POSSESSION OF VIRTUAL CSAM WHILE EXPLICITLY SEEKING TO BAN THE
PRODUCTION, DIRECTION, AND PROMOTION OF THIS TYPE OF MATERIAL.
THIS BILL KEEPS PACE WITH TECHNOLOGICAL ADVANCEMENTS IN AI TECHNOLOGY BY
BROADENING THE SCOPE OF PENAL LAW TO TARGET OBSCENE SYNTHETIC SEXUAL
PERFORMANCES THAT DEPICT A CHILD, EVEN IF SUCH IMAGES DO NOT CORRESPOND
TO AN ACTUAL PERSON. ALLOWING THE PRODUCTION, DIRECTION, AND PROMOTION
OF MATERIALS OF THIS SORT, REGARDLESS OF WHETHER THEY CORRESPOND TO AN
ACTUAL CHILD, HARMFULLY NORMALIZES THE SEXUAL EXPLOITATION OF CHILDREN
AND FUELS DEMAND FOR ABUSIVE CONTENT WITH THE RISE OF HYPER REALISTIC
AI-GENERATED CSAM.
 
LEGISLATIVE HISTORY:
NEW BILL
 
FISCAL IMPLICATIONS:
NONE
 
EFFECTIVE DATE:
THIS ACT SHALL TAKE EFFECT IMMEDIATELY

Statutes affected:
S10696: 263.00 penal law, 263.10 penal law