New York Criminal Lawyer Blog
In the context of unlawful intimate and sexual imagery, the ease by which malicious actors can create “deep fakes” and AI generated images to harm or harass others in every facet of their lives both online and off has led New York State to broaden the criminal code to address the growing trends of today. To that end, as of July 2025, what was not a crime not too long ago may very well potentially be criminal today.
While manipulating, morphing or creating certain images might have allowed an accused to skate by legal culpability in a criminal court, faking, creating or “digitizing” a photo or recording may no longer allow you to pass “Go” as it did in the past. Instead, you may find yourself in jail and charged with violating one of many New York crimes. Whether tied to Penal Law 245.15, Revenge Porn, aka, Unlawful Dissemination or Publication of an Intimate Image, of child sexual abuse material crimes of Penal Law 263.10, Promoting an Obscene Sexual Performance by a Child, Penal Law 263.11, Possessing an Obscene Sexual Performance by a Child, Penal Law 263.15, Promoting a Sexual Performance by a Child, or Penal Law 263.16, Possessing a Sexual Performance by a Child, asserting an image is fake or altered might be a defense of the past.
Defining Digitization
To catch up with the times, New York State amended Penal Law 245.15 and codified section (2)(d) defining “digitization” as follows: “‘digitization’ shall mean to alter an image in a realistic manner utilizing an image or images of a person, other than the person depicted, or computer generated images.”
Taking the above a step further, now, by law, the other crimes referenced above relating to CSAM also reference this Revenge Porn section on digitization that was initially adopted in 2024 and apply it to these respective statutes since last year.
What Does Digitization Mean in The Real World
Do “deep fakes” and AI generated or altered images now potentially qualify as violations of the Penal Law? Yes. What does that mean for practical purposes? In the realm of Revenge Porn, if you superimpose a man or woman’s face on a body or exaggerate or expose an altered or faked intimate body party such as breasts, penis, or vagina, the defense proclaiming that the image is completely or partially fictitious and not the person in question is dead, assuming all the other elements of this crime can be proven beyond a reasonable doubt. Not only that, outside the criminal justice system, New York State codified a private cause of action in Civil Rights Law 52-b for these falsified pictures and videos that were otherwise only available to real photos and recordings.
Taking digitization a step further, in the area of CSAM crimes, placing a child’s face or head on an adult’s naked body, whether by AI, Photoshop, or some other app, online, or offline method, would also run afoul of the law. In fact, though there are not many published decisions on this issue, a recent decision by New York’s Appellate Division First Department found that an offender who morphed child pornography did not violate a New York statute because these types of fake images involving sexual acts of a minor did not violate Penal Law 263.15 before July 8, 2025. In other words, these actions would violate the law today. Again, but for the timing, what may have given you a pass yesterday will not give you defense today or tomorrow.
At bottom, just like other states and the federal government, New York’s criminal laws are not stagnant. Instead, they evolve to adapt to the world we live in today. How they will change as we go forward is unknown, but know this: Penal Law 263.10, 263.11, 263.15 and 263.16 adopt the broad “created or altered by” language that encompass entirely fake and AI generated images and treat them just as they would an edited and modified one. Whether possession of such images is protected by the First Amendment and does not violate the law remains in dispute, but the legal exposure remains quite real. On August 25, 2026, the Seventh Circuit agreed with a lower court’s decision to dismiss charges in a case of AI generated CSAM where Steven Anderegg was charged with using AI to create hyper-realistic images of very young minors engaging in sexually explicit acts and possessing those images at home. What happens next in terms of legislation to adress this concern, how possession and distribution and dissemination of CSAM materials are treated somewhat differently, and when the Supreme Court weighs in on the ever-changing landscape of AI and its influence in this area of law, will definitely unfold further in the months and years to come.
Saland Law is a criminal defense firm founded by Jeremy Saland, a former Manhattan prosecutor. Located in New York City’s borough of Manhattan, Saland Law represents clients in criminal matters, Article 8 family court order of protection proceedings, and in Title IX investigations and hearings at colleges and universities throughout the United States.