A3006

An Act concerning disclosures of intentionally deceptive audio or visual media and supplementing Title 56 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. As used in P.L. , c. (C. ) (pending before the Legislature as this bill):

“Advanced technological false personation record” or “record” means any deceptive audio or visual media that a reasonable person, having considered the visual or audio qualities of the record and the nature of the distribution channel in which the record appears, would believe accurately exhibits:

any material activity of a living person which the living person did not in fact undertake and was produced without the consent of the living person and the exhibition of which is substantially likely to either further a criminal act or result in improper interference in an official proceeding, public policy debate, or election; or

any material activity of a deceased person that the deceased person did not in fact undertake, that was produced without the consent of the deceased person or the heirs thereof and the exhibition of which is substantially likely to either further a criminal act or result in improper interference in an official proceeding, public policy debate, or election.

“Material activity” means any falsified speech, conduct, or depiction which causes, or a reasonable person would recognize has a tendency to cause, perceptible individual or societal harm, including misrepresentation, reputational damage, embarrassment, harassment, financial losses, the incitement of violence, the alteration of a public policy debate or election, or the furtherance of any unlawful act.

“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.

2. a. A person who produces an advanced technological false personation record with the intent to distribute the record over the Internet or with knowledge that the record shall be so distributed, and which a person in this State has the ability to access via the Internet, shall ensure the record complies with:

(1) the watermark requirement pursuant to subsection b. of this section; and

(2) in the case of an audiovisual record, the disclosure requirements under subsection c. of this section;

(3) in the case of a visual record, the disclosure requirements under subsection d. of this section; or

(4) in the case of an audio record, the disclosure requirements under subsection e. of this section.

b. An advanced technological false personation record which contains a moving visual element shall contain an embedded digital watermark clearly identifying the record as containing altered audio or visual elements.

c. An advanced technological false personation record containing both an audio and a visual element shall include:

(1) not less than one clearly articulated verbal statement that identifies the record as containing altered audio and visual elements, and a concise description of the extent of the alteration; and

(2) an unobscured written statement in clearly readable text appearing at the bottom of the image throughout the duration of the visual element that identifies the record as containing altered audio and visual elements, and a concise description of the extent of the alteration.

d. An advanced technological false personation record exclusively containing a visual element shall include an unobscured written statement in clearly readable text appearing at the bottom of the image throughout the duration of the visual element that identifies the record as containing altered visual elements, and a concise description of the extent of the alteration.

e. An advanced technological false personation record exclusively containing an audio element shall include, at the beginning of the record, a clearly articulated verbal statement that identifies the record as containing altered audio elements and a concise description of the extent of the alteration, and in the event the record exceeds two minutes in length, not less than one additional clearly articulated verbal statement and additional concise description at some interval during each two-minute period thereafter.

3. a. The provisions of P.L. , c. (C. ) (pending before the Legislature as this bill) shall not apply with respect to any advanced technological false personation record:

(1) containing alternative disclosures regarding the falsity of the exhibited material activities which a reasonable person would deem to be more prominent than those required pursuant to section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill);

(2) during the process of producing the record, provided the ultimately distributed record is in compliance;

(3) which primarily contains images or sound recordings of actual persons, such as performing artists, and have not been
substantially digitally modified;

(4) created in connection with editing a motion picture, television, music, or similar production or creating a derivative production thereof, the original content of which was created prior to the enactment of P.L. , c. (C. ) (pending before the Legislature as this bill), in which the person appearing provided consent to their original appearance; or

(5) appearing in a context such that a reasonable person would not mistake the falsified material activity for actual material activity of the exhibited living person, such as parody shows or publications, historical reenactments, or fictionalized radio, television, or motion picture programming.

b. The watermark requirement pursuant to section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall not apply with respect to any class of advanced technological false personation records which the Attorney General determines by regulation should be excluded.

4. The Attorney General, in coordination with any other State agency the Attorney General deems necessary, shall submit a report to the Governor and, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), the Legislature no later than five years after the date of enactment of P.L. , c. (C. ) (pending before the Legislature as this bill), and five years thereafter, describing trends related to prosecutions and civil penalties pursued pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) and recommending any updates to P.L. , c. (C. ) (pending before the Legislature as this bill) necessitated by the emergence of new technologies.

5. a. It shall be an unlawful practice and a violation of P.L.1960, c.39 (C.56:8-1 et seq.) to violate the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill).

b. A person shall be guilty of a crime of the third degree, in addition to any other penalty provided by law, if the person knowingly omits or obscures the disclosure requirements of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill):

(1) with the intent to humiliate or otherwise harass the person falsely exhibited, provided the advanced technological false personation record contains sexual content of a visual nature and appears to feature the person engaging in such sexual acts or in a state of nudity;

(2) with the intent to cause violence or physical harm, incite armed or diplomatic conflict, or interfere in an official proceeding, including an election, provided the advanced technological false personation record did in fact pose a credible threat of instigating or advancing these outcomes;

(3) in the course of criminal conduct related to fraud, including securities fraud and wire fraud, false personation, or identity theft; or

(4) by a foreign power, or an agent thereof, with the intent of influencing a domestic public policy debate, interfering in a federal, State, local, or territorial election, or engaging in other acts which the power may not lawfully undertake.

6. The Attorney General shall, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), adopt rules and regulations, as appropriate, to effectuate the purposes P.L. , c. (C. ) (pending before the Legislature as this bill), which shall include, but not be limited to:

a. a process by which any producer of audio, visual, or audiovisual content may seek an advisory opinion regarding the legality of their proposed production pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill);

b. a response to requests made pursuant to subsection a. of this section for advice not later than 30 days after the date of submission;

c. not pursuing an enforcement action pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) against any producer who relied in good faith on an advisory opinion;

d. procedures to govern the issuance of waivers from any requirements or liabilities pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) to additional categories of advanced technological false personation records upon petition of any producer thereof if the producer can demonstrate compliance with P.L. , c. (C. ) (pending before the Legislature as this bill) would impede their ability to engage in otherwise lawful activities protected by the First Amendment of the Constitution of the United States; and

e. one year of the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), rules governing the technical specifications of the digital watermarks required pursuant to section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill), which shall include, if it is determined appropriate by the Attorney General, a requirement for watermarks to contain embedded metadata.

7. This act shall take effect immediately.

STATEMENT

This bill requires a person who produces an “advanced technological false personation record,” as that term is defined in the bill, with the intent to distribute the record over the Internet or with knowledge that the record is to be so distributed, and which a person in this State has the ability to access via the Internet, to ensure the record contains certain disclosures. An advanced technological false personation record (record) which contains a moving visual element is to contain an embedded digital watermark clearly identifying the record as containing altered audio or visual elements. A record containing both an audio and a visual element is to include not less than one clearly articulated verbal statement that identifies the record as containing altered audio and visual elements, and a concise description of the extent of the alteration and an unobscured written statement in clearly readable text appearing at the bottom of the image throughout the duration of the visual element that identifies the record as containing altered audio and visual elements, and a concise description of the extent of the alteration. A record exclusively containing a visual element is to include an unobscured written statement in clearly readable text appearing at the bottom of the image throughout the duration of the visual element that identifies the record as containing altered visual elements, and a concise description of the extent of the alteration. A record exclusively containing an audio element is to include, at the beginning of the record, a clearly articulated verbal statement that identifies the record as containing altered audio elements and a concise description of the extent of the alteration, and in the event the record exceeds two minutes in length, not less than one additional clearly articulated verbal statement and additional concise description at some interval during each two-minute period thereafter.

The provisions of the bill are not to apply with respect to any record:

1) containing alternative disclosures regarding the falsity of the exhibited material activities which a reasonable person would deem to be more prominent than those required under the bill;

2) during the process of producing the record, provided the ultimately distributed record is in compliance;

3) which primarily contains images or sound recordings of actual persons, such as performing artists, and have not been substantially digitally modified;

4) created in connection with editing a motion picture, television, music, or similar production or creating a derivative production thereof, the original content of which was created prior to the enactment of the bill, in which the person appearing provided consent to their original appearance; or

5) appearing in a context such that a reasonable person would not mistake the falsified material activity for actual material activity of the exhibited living person, such as parody shows or publications, historical reenactments, or fictionalized radio, television, or motion picture programming.

The bill provides that the watermark requirement is not to apply with respect to any class of record which the Attorney General determines by regulation should be excluded.

The bill requires the Attorney General, in coordination with any other State agency the Attorney General deems necssary, to submit a report to the Governor and the Legislature no later than five years after the date of enactment of the bill, and five years thereafter, describing trends related to prosecutions and civil penalties pursued pursuant to the bill and recommending any updates to the bill necessitated by the emergence of new technologies.

It is to be an unlawful practice and a violation of the consumer fraud act to violate the provisions of the bill, which includes, but is not limited to penalties of not more than $10,000 for the first offense and not more than $20,000 for the second and each subsequent offense. Further, the bill provides that a person is to be guilty of a crime of the third degree if they knowingly omit or obscure the disclosure requirements of the bill:

1) with the intent to humiliate or otherwise harass the person falsely exhibited, provided the advanced technological false personation record contains sexual content of a visual nature and appears to feature the person engaging in such sexual acts or in a state of nudity;

2) with the intent to cause violence or physical harm, incite armed or diplomatic conflict, or interfere in an official proceeding, including an election, provided the advanced technological false personation record did in fact pose a credible threat of instigating or advancing these outcomes;

3) in the course of criminal conduct related to fraud, including securities fraud and wire fraud, false personation, or identity theft; or

4) by a foreign power, or an agent thereof, with the intent of influencing a domestic public policy debate, interfering in a federal, State, local, or territorial election, or engaging in other acts which the power may not lawfully undertake.