Relates to the crime of promoting an obscene sexual performance by a child

◆ The sponsor's argument

Why Patricia Fahy says this is needed

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.

This is the sponsor's own case for the bill, quoted from their memorandum. It is not Agora's description of what the bill does.