Games * Design * Art * Culture

Monday, June 04, 2007

I, Felon?

So last week, the New York State Assembly overwhelmingly passed a bill criminializing sale of 'indecent' videogames. There's a different bill in the State Senate, apparently, and presumably the two will have to be reconciled before there's an actual law. But since I a) live in New York, and b) retail computer games, I figured I ought to take a look at it. Hence:

S T A T E O F N E W Y O R K
________________________________________________________________________

8696

2007-2008 Regular Sessions

I N A S S E M B L Y

May 25, 2007
___________

Introduced by M. of A. LENTOL, SILVER, PHEFFER -- read once and referred
to the Committee on Codes

AN ACT to amend the penal law, the general business law, and the execu-
tive law, in relation to disseminating violent and indecent video
games to minors

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

1 Section 1. The penal law is amended by adding a new section 235.22-a
2 to read as follows:
3 S 235.22-A DISSEMINATING VIOLENT AND INDECENT VIDEO GAMES TO MINORS.
4 1. A PERSON IS GUILTY OF DISSEMINATING VIOLENT AND INDECENT VIDEO
5 GAMES TO MINORS WHEN, WITH KNOWLEDGE OF ITS CHARACTER AND CONTENT, HE OR
6 SHE SELLS OR LOANS TO A MINOR FOR MONETARY CONSIDERATION ANY VIDEO GAME
7 WHICH INCLUDES DEPRAVED VIOLENCE AND INDECENT IMAGES THAT ARE ACCESSIBLE
8 TO A USER.
9 2. FOR THE PURPOSE OF THIS SECTION:
10 (A) "VIDEO GAME" MEANS AN INTERACTIVE ELECTRONIC AMUSEMENT DEVICE,
11 DISK, CARTRIDGE OR OTHER OBJECT THAT UTILIZES A COMPUTER, MICROPROCESSOR
12 OR SIMILAR ELECTRONIC CIRCUITRY AND ITS OWN MONITOR, A TELEVISION SET OR
13 A COMPUTER MONITOR, AND SUCH DEVICE OR OBJECT IS DESIGNED TO ALLOW A
14 PERSON TO MANIPULATE IMAGES PRESENTED BY SUCH DEVICE OR OBJECT.

Well, this may let me out, since I sell via direct download--no tangible object changes hands.

15 (B) "DEPRAVED VIOLENCE" MEANS ANY PHOTOGRAPHIC, PHOTO-REALISTIC OR
16 SIMILAR VISUAL REPRESENTATION OR IMAGE DEPICTING THE RAPE, DISMEMBER-
17 MENT, PHYSICAL TORTURE, MUTILATION OR EVISCERATION OF A HUMAN BEING.

Well, some of the games we carry are pretty violent, but I don't recall anything that actually depicts this. Hard to know, of course--I haven't played everything all the way through, to be sure.

18 (C) "INDECENT IMAGE" MEANS ANY PHOTOGRAPHIC, PHOTO-REALISTIC OR SIMI-
19 LAR VISUAL REPRESENTATION OR IMAGE OF A PERSON OR PORTION OF THE HUMAN
20 BODY WHICH DEPICTS NUDITY, SEXUAL CONDUCT OR SADO-MASOCHISTIC ABUSE AND
21 WHICH IS HARMFUL TO MINORS.

Hmm, well, Sociolotron has explicit in-game support for bdsm, and you can be raped if you enter a "pvp" area. (Though that is, in essence, implicit agreement--entering such an area is voluntary.) Of course, it's one of the few games on the site tagged as "Adult," meaning you have to register claiming you're over 18 to access it. Still, you know--little Joey lies about his age and borrows mom's credit card... Not something I can reasonably prevent.

22 (D) "MINOR," "NUDITY," "SEXUAL CONDUCT," "SADO-MASOCHISTIC ABUSE" AND
23 "HARMFUL TO MINORS" SHALL HAVE THE MEANINGS SET FORTH IN SECTION 235.20
24 OF THIS ARTICLE.

Okay. So this section is a modification to Article 235 section 22 of the New York State penal code (adding a new section, 235.22-a); so we have to look at Article 235, specifically section 235.22, which states:

S 235.22 Disseminating indecent material to minors in the first degree.
A person is guilty of disseminating indecent material to minors in the
first degree when:
1. knowing the character and content of the communication which, in
whole or in part, depicts actual or simulated nudity, sexual conduct or
sado-masochistic abuse, and which is harmful to minors, he intentionally
uses any computer communication system allowing the input, output,
examination or transfer, of computer data or computer programs from one
computer to another, to initiate or engage in such communication with a
person who is a minor; and
2. by means of such communication he importunes, invites or induces a
minor to engage in sexual intercourse, deviate sexual intercourse, or
sexual contact with him, or to engage in a sexual performance, obscene
sexual performance, or sexual conduct for his benefit.
Disseminating indecent material to minors in the first degree is a
class D felony.

Hmm... So what they're saying is that selling someone a game that depicts, say, evisceration (Duke Nuke'em anyone?) is the same as soliciting sex from a minor over the Internet.

I think maybe there's a kind of intellectual disconnect here. But back to the bill:

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
{ } is old law to be omitted.
LBD13425-03-7

A. 8696 2

1 DISSEMINATING VIOLENT AND INDECENT VIDEO GAMES TO MINORS IS A CLASS E
2 FELONY.

Oh, okay. Class E felony. What's that mean? Well, we have to look here, to see that the penalties are maximum sentence: 4 years; minimum sentence: 1 year. For a second offense, the minimum sentence is jacked to 3 years. For a "persistent felony offender," there's potential life imprisonment. Wahoo! My guess is that if I violate the law once, I violate it twice at least; two sales to minors of games that some judge decides is too nasty. Not hard to do. Maybe I'm even a "persistent" felony offender if I sell three. Well, I guess I'll have a lot of time to write some more novels.

Back to the bill again:

3 S 2. The opening paragraphs of subdivisions 2 and 3 of section 235.23
4 of the penal law, the opening paragraph of subdivision 2 as amended and
5 the opening paragraph of subdivision 3 as added by chapter 600 of the
6 laws of 1996, are amended to read as follows:
7 In any prosecution for disseminating indecent material to minors in
8 the second degree pursuant to subdivision one or two of section 235.21
9 of this article OR DISSEMINATING VIOLENT AND INDECENT VIDEO GAMES TO
10 MINORS PURSUANT TO SUBDIVISION ONE OF SECTION 235.22-A OF THIS ARTICLE,
11 it is an affirmative defense that:
12 In any prosecution for disseminating indecent material to minors in
13 the second degree pursuant to subdivision three of section 235.21 of
14 this article {or}, disseminating indecent material to minors in the
15 first degree pursuant to section 235.22 of this article OR DISSEMINATING
16 VIOLENT AND INDECENT VIDEO GAMES TO MINORS PURSUANT TO SUBDIVISION ONE
17 OF SECTION 235.22-A OF THIS ARTICLE, it shall be a defense that:
18 S 3. The general business law is amended by adding a new section 396-
19 kk to read as follows:
20 S 396-KK. SALE OF VIDEO GAME CONSOLES. 1. FOR PURPOSES OF THIS
21 SECTION:
22 (A) "VIDEO GAME" MEANS AN INTERACTIVE ELECTRONIC AMUSEMENT DEVICE,
23 DISK, CARTRIDGE OR OTHER OBJECT THAT UTILIZES A COMPUTER, MICROPROCESSOR
24 OR SIMILAR ELECTRONIC CIRCUITRY AND ITS OWN MONITOR, A TELEVISION SET OR
25 A COMPUTER MONITOR, AND SUCH DEVICE OR OBJECT IS DESIGNED TO ALLOW A
26 PERSON TO MANIPULATE THE IMAGES PRESENTED BY SUCH DEVICE OR OBJECT.
27 (B) "VIDEO GAME CONSOLE" MEANS AN INTERACTIVE ELECTRONIC AMUSEMENT
28 DEVICE THAT USES A DEDICATED COMPUTER, MICROPROCESSOR OR SIMILAR ELEC-
29 TRONIC CIRCUITRY AND ITS OWN MONITOR, A TELEVISION SET OR A COMPUTER
30 MONITOR TO ENABLE A PERSON TO INTERACT WITH A VIDEO GAME. SUCH TERMS
31 SHALL NOT INCLUDE A PERSONAL COMPUTER, NOR SHALL THEY INCLUDE A HANDHELD
32 DEVICE IN WHICH SUCH ENTIRE DEVICE, INCLUDING THE VIEWING SCREEN, IS
33 DESIGNED TO BE HELD IN ONE`S HAND.

Odd. So it's okay to sell a violent game for PSP?

34 2. EVERY NEW VIDEO GAME CONSOLE SOLD AT RETAIL IN THIS STATE SHALL
35 INCLUDE A MECHANISM, DEVICE OR CONTROL SYSTEM THAT ALLOWS AN OWNER,
36 THROUGH THE USE OF A PERSONAL IDENTIFICATION NUMBER, PASSWORD OR SIMILAR
37 TECHNOLOGY, TO PREVENT THE DISPLAY OF VIDEO GAMES, OR PORTIONS THEREOF,
38 CONTAINING CERTAIN CONTENT ON SUCH VIDEO GAME CONSOLE.
39 3. WHENEVER THERE SHALL BE A VIOLATION OF THIS SECTION, AN APPLICATION
40 MAY BE MADE BY THE ATTORNEY GENERAL IN THE NAME OF THE PEOPLE OF THE
41 STATE OF NEW YORK TO A COURT OR JUSTICE HAVING JURISDICTION BY A SPECIAL
42 PROCEEDING TO ISSUE AN INJUNCTION, AND UPON NOTICE TO THE DEFENDANT OF
43 NOT LESS THAN FIVE DAYS, TO ENJOIN AND RESTRAIN THE CONTINUANCE OF SUCH
44 VIOLATION; AND IF IT SHALL APPEAR TO THE SATISFACTION OF THE COURT OR
45 JUSTICE THAT THE DEFENDANT HAS, IN FACT, VIOLATED THIS SECTION, AN
46 INJUNCTION MAY BE ISSUED BY SUCH COURT OR JUSTICE, ENJOINING AND
47 RESTRAINING ANY FURTHER VIOLATION, WITHOUT REQUIRING PROOF THAT ANY
48 PERSON HAS, IN FACT, BEEN INJURED OR DAMAGED THEREBY. IN ANY SUCH
49 PROCEEDING, THE COURT MAY MAKE ALLOWANCES TO THE ATTORNEY GENERAL AS
50 PROVIDED IN PARAGRAPH SIX OF SUBDIVISION (A) OF SECTION EIGHTY-THREE
51 HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES, AND DIRECT RESTITU-
52 TION. WHENEVER THE COURT SHALL DETERMINE THAT A VIOLATION OF THIS
53 SECTION HAS OCCURRED, THE COURT MAY IMPOSE A CIVIL PENALTY OF NOT MORE
54 THAN FIVE HUNDRED DOLLARS FOR A SINGLE VIOLATION AND NOT MORE THAN FIFTY
55 THOUSAND DOLLARS FOR MULTIPLE VIOLATIONS RESULTING FROM A SINGLE ACT OR
56 INCIDENT. IN CONNECTION WITH ANY SUCH PROPOSED APPLICATION, THE ATTORNEY

A. 8696 3

1 GENERAL IS AUTHORIZED TO TAKE PROOF AND MAKE A DETERMINATION OF THE
2 RELEVANT FACTS AND TO ISSUE SUBPOENAS IN ACCORDANCE WITH THE CIVIL PRAC-
3 TICE LAW AND RULES.
4 S 4. The executive law is amended by adding a new section 554 to read
5 as follows:
6 S 554. ADVISORY COUNCIL ON INTERACTIVE MEDIA AND YOUTH VIOLENCE. 1.
7 THERE IS HEREBY CREATED UNDER THE BOARD AN ADVISORY COUNCIL ON INTERAC-
8 TIVE MEDIA AND YOUTH VIOLENCE TO MAKE RECOMMENDATIONS ON INTERACTIVE
9 MEDIA AND YOUTH VIOLENCE RELATED ISSUES; ADDRESS THE POTENTIAL IMPACT OF
10 INTERACTIVE MEDIA AND SIMILAR ENTERTAINMENT DEVICES ON MINORS WITH
11 PARTICULAR ATTENTION FOCUSED ON ANY RELATIONSHIP BETWEEN THE USE OF SUCH
12 DEVICES AND VIOLENT TENDENCIES AND RELATED ISSUES; REVIEW THE ENTER-
13 TAINMENT SOFTWARE RATING BOARD`S VIDEO GAME RATING SYSTEM AND MAKE
14 RECOMMENDATIONS THEREON AS TO THE EFFECTIVENESS OF SUCH SYSTEM IN RATING
15 VIDEO GAMES AND THE ACCURACY OF SUCH SYSTEM IN IDENTIFYING VIOLENT OR
16 SEXUAL CONTENT, INCLUDING BUT NOT LIMITED TO RACIALLY- AND GENDER-MOTI-
17 VATED VIOLENCE AND VIOLENCE AGAINST LAW ENFORCEMENT; AND STUDY THE
18 POTENTIAL OF ESTABLISHING A PARENT-TEACHER VIOLENCE AWARENESS PROGRAM TO
19 IDENTIFY AND APPROPRIATELY ASSIST STUDENTS WHO MAY HAVE A PROPENSITY
20 TOWARD VIOLENCE. THE ADVISORY COUNCIL SHALL ASSIST IN THE DEVELOPMENT OF
21 APPROPRIATE POLICIES AND PRIORITIES FOR EFFECTIVE INTERVENTION, PUBLIC
22 EDUCATION AND ADVOCACY AGAINST YOUTH VIOLENCE, INCLUDING BUT NOT LIMITED
23 TO RACIALLY- AND GENDER-MOTIVATED VIOLENCE AND VIOLENCE AGAINST LAW
24 ENFORCEMENT, AND TO FACILITATE AND ASSURE COMMUNICATION AND COORDINATION
25 OF EFFORTS AMONG STATE AGENCIES AND BETWEEN DIFFERENT LEVELS OF GOVERN-
26 MENT, STATE, FEDERAL, AND MUNICIPAL, FOR THE PREVENTION OF YOUTH
27 VIOLENCE.
28 2. THE ADVISORY COUNCIL SHALL CONSIST OF FIFTEEN MEMBERS. EACH MEMBER
29 SHALL BE APPOINTED BY THE GOVERNOR TO SERVE A TERM OF THREE YEARS AND
30 SHALL CONTINUE IN OFFICE UNTIL A SUCCESSOR IS APPOINTED. A MEMBER
31 APPOINTED TO FILL A VACANCY SHALL BE APPOINTED FOR THE UNEXPIRED TERM OF
32 THE MEMBER HE OR SHE IS TO SUCCEED. THE MEMBERS SHALL INCLUDE INDIVID-
33 UALS WITH EXPERTISE IN THE AREA OF THE YOUTH VIOLENCE AND ONE REPRESEN-
34 TATIVE FROM THE VIDEO GAME MANUFACTURING INDUSTRY. THREE MEMBERS SHALL
35 BE APPOINTED BY THE GOVERNOR. TWO MEMBERS SHALL BE APPOINTED BY THE
36 GOVERNOR UPON THE RECOMMENDATION OF THE TEMPORARY PRESIDENT OF THE
37 SENATE, TWO MEMBERS SHALL BE APPOINTED BY THE GOVERNOR UPON THE RECOM-
38 MENDATION OF THE SPEAKER OF THE ASSEMBLY, ONE MEMBER SHALL BE APPOINTED
39 BY THE GOVERNOR UPON THE RECOMMENDATION OF THE MINORITY LEADER OF THE
40 SENATE, ONE MEMBER SHALL BE APPOINTED BY THE GOVERNOR UPON THE RECOMMEN-
41 DATION OF THE MINORITY LEADER OF THE ASSEMBLY, AND THE GOVERNOR SHALL
42 APPOINT ONE MEMBER EACH UPON THE RECOMMENDATION OF THE EXECUTIVE DIREC-
43 TOR OF THE BOARD, COMMISSIONER OF THE EDUCATION DEPARTMENT, COMMISSIONER
44 OF THE OFFICE OF MENTAL HEALTH, COMMISSIONER OF THE OFFICE OF CHILDREN
45 AND FAMILY SERVICES, COMMISSIONER OF THE DIVISION OF CRIMINAL JUSTICE
46 SERVICES, AND THE CHAIR OF THE COUNCIL ON THE ARTS. THE CHAIR OF THE
47 ADVISORY COUNCIL SHALL BE DESIGNATED BY THE GOVERNOR.

What a boondoggle. And what a bully puplpit for censorious nuthatches.

48 3. THE ADVISORY COUNCIL SHALL SUBMIT A WRITTEN REPORT TO THE GOVERNOR
49 AND LEGISLATURE ON OR BEFORE DECEMBER THIRTY-FIRST, TWO THOUSAND EIGHT
50 AND ANNUALLY THEREAFTER, SETTING FORTH THE RECOMMENDATIONS AND ACTIV-
51 ITIES OF THE ADVISORY COUNCIL ON MATTERS WITHIN THE SCOPE OF ITS POWERS
52 AND DUTIES AS SET FORTH IN THIS SECTION, AND DESCRIBING THE PROGRESS
53 MADE REGARDING POLICIES AND PRIORITIES FOR EFFECTIVE INTERVENTION,
54 PUBLIC EDUCATION AND ADVOCACY AGAINST YOUTH VIOLENCE.
55 4. THE ADVISORY COUNCIL SHALL MEET AS OFTEN AS DEEMED NECESSARY BY THE
56 CHAIR BUT IN NO EVENT LESS THAN TWO TIMES PER YEAR.

A. 8696 4

1 5. THE MEMBERS OF THE ADVISORY COUNCIL SHALL RECEIVE NO SALARY OR
2 OTHER COMPENSATION FOR THEIR SERVICES BUT SHALL BE ENTITLED TO
3 REIMBURSEMENT FOR ACTUAL AND NECESSARY EXPENSES INCURRED IN THE PERFORM-
4 ANCE OF THEIR DUTIES WITHIN AMOUNTS MADE AVAILABLE BY APPROPRIATION
5 THEREFOR SUBJECT TO THE APPROVAL OF THE DIRECTOR OF THE BUDGET.
6 S 5. Severability. If any clause, sentence, paragraph, subdivision or
7 part of this act, or the application thereof to any person or circum-
8 stance, shall be adjudged by any court of competent jurisdiction to be
9 invalid or unconstitutional, such judgment shall not affect, impair or
10 invalidate the remainder thereof, but shall be confined in its operation
11 to the clause, sentence, paragraph, subdivision or part of this act, or
12 in its application to the person or circumstance, directly involved in
13 the controversy in which such judgment shall have been rendered.
14 S 6. This act shall take effect immediately; provided, however, that
15 sections one and two of this act shall take effect on the one hundred
16 twentieth day after they shall have become a law; and section three of
17 this act shall take effect September 1, 2009.

Well, looks like I kind of dodge the bullet here, since we don't sell physical product. Assuming this survives legal challenge, of course, that does seem like an obvious loophole they'd want to fix. I could move to New Jersey, I suppose (where our servers are located anyway), but presumably I'd simply be extradited if any kid in New York buys a violent game. Probably the only way to manage it is move someplace without an extradition treaty to the US, which doesn't sound like a lot of fun. The only obvious safe-harbor is never to sell any unrated game, or any AO (or possibly M) rated title--which is never going to work if we continue to sell indie games, which are generally unrated.

Oh, well. We shall see, I suppose.

posted by Greg at 11:50 AM 11 comments

11 Comments:

This leads me to believe that Hillary has not dropped her crusade against video games. I thought an earlier post of yours implied otherwise.

By Nils Dougan, at 3:22 PM

For those games which you have not played through and so aren't sure of the content, could you use "with knowledge of its character and content" (line 5 of 235.22 point 1, the top of your post) to say you didn't know you were selling a game with indecent content? (Of course, that brings into question whether the developers can be held responsible as well.) If that does work, then the obvious solution is to stop playing submissions at all and just sell any and everything developers submit.

Odd. So it's okay to sell a violent game for PSP?
I believe that section was just for the definition of a "video game console" so that a PSP would not be required to have some sort of content filter system on it.

By Trin, at 4:33 PM

It also doesn't include PCs, so even if you sold retail PC games you'd be in the clear. Which is stupid, considering the intent. But you've got two layers of protection. Oh yeah, and the first amendment, that'd be the third.

Seriously, this is going to get struck down on 1st amendment grounds just like any similar bill.

By Patrick, at 5:15 PM

Actually, as I read it, it -does- include PC games.

By Greg, at 5:31 PM

Oh, and Hillary has nothing to do with it. She's a US Senator, this is the state government.

By Greg, at 5:32 PM

Would you be suitable for the industry post, or is that a frame-up job?

By MCroft, at 11:33 PM

You know, don't you, that the state of Illinois tried the same thing? It failed miserably (and very expensively).

By Alan Bostick, at 1:03 AM

"DEPRAVED VIOLENCE" MEANS ANY PHOTOGRAPHIC, PHOTO-REALISTIC OR
16 SIMILAR VISUAL REPRESENTATION OR IMAGE DEPICTING THE RAPE, DISMEMBER-
17 MENT, PHYSICAL TORTURE, MUTILATION OR EVISCERATION OF A HUMAN BEING.

Gibbage contains dismemberment! I don't know what evisceration is, but it probably contains that, too.

I'm totally getting you sent to the nick, Greg...! ;D

By Dan, at 5:40 AM

Greg, I wouldn't rely on the assumption that "object" has the same legal meaning as it does in plain English. In fact, I would rely upon the precise opposite. (Also, I think you're misunderstanding some of the sections of the bill. Don't read the bill: read the penal code as modified by the bill. Actually, read the case law, because that's where the rubber really hits the jurisprudential road -- but that's why you retain counsel.)

I'd lobby your elected officials, with extreme prejudice, and if this thing passes, consult a lawyer to determine the extent of your legal liability. Good luck....

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