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HOUSE BILL 401
57
TH LEGISLATURE
-
STATE
OF
NEW
MEXICO
-
FIRST SESSION
,
2025
INTRODUCED BY
Linda Serrato
AN ACT
RELATING TO ARTIFICIAL INTELLIGENCE; ENACTING THE ARTIFICIAL
INTELLIGENCE SYNTHETIC CONTENT ACCOUNTABILITY ACT; PROVIDING
FOR CIVIL AND CRIMINAL ENFORCEMENT FOR IMPROPER USE OF
SYNTHETIC CONTENT CREATED BY ARTIFICIAL INTELLIGENCE; PROVIDING
PENALTIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be
cited as the "Artificial Intelligence Synthetic Content
Accountability Act".
SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the
Artificial Intelligence Synthetic Content Accountability Act:
A. "artificial intelligence" means an engineered or
machine-based system that has various levels of autonomy and,
for explicit or implicit objectives, can infer from input the
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system receives how to generate outputs that can influence
physical or virtual environments;
B. "artificial intelligence red-teaming" means
structured testing of a generative artificial intelligence
system to identify harmful or discriminatory outputs,
unforeseen or undesirable system behaviors, limitations,
potential risks associated with the misuse of the system or
other flaws or vulnerabilities of the system;
C. "biometric system" means a technology system
that links the identity of a person to the person's unique
physical characteristics, including the person's fingerprints,
iris or face;
D. "content" means images, videos or audio
materials;
E. "covered synthetic content" means all synthetic
content except for text;
F. "depicted person" means a person depicted in
covered synthetic content;
G. "digital fingerprint" means a unique set of
information that can be used to identify identical or similar
digital content;
H. "digital identification" means information
stored on a digital network that serves as proof of the
identity of an individual person;
I. "digital signature" means a cryptography-based
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method that uses provenance data to verify that an individual
or an entity participated in the creation of certain digital
content;
J. "generative artificial intelligence system"
means an artificial intelligence system that is capable of
generating synthetic content or derivative synthetic content;
K. "large online platform":
(1) means a public-facing or semi-public-
facing, internet-based service or application that:
(a) has had at least one hundred
thousand users in New Mexico during the preceding twelve
months;
(b) substantially functions to connect
platform users to allow social interactions among users within
the platform; and
(c) can facilitate the sharing of
content; and
(2) does not mean a system that provides email
or direct messaging communication services alone;
L. "minor modification", with respect to
nonsynthetic content, means content that has been changed in a
way that does not significantly affect the meaning or
perception of the content, including changes to the brightness
or contrast of visual content or reduction or removal of
background noise in audio content;
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M. "nonsynthetic content" means content created by
a person that includes no modifications or only minor
modifications;
N. "provenance data" means information about the
history of the creation and modification of content, including:
(1) the name of the provider of a generative
artificial intelligence system or the camera or recording
device manufacturer that relates to the production of content;
(2) the name and version number of the
artificial intelligence system that generated the content;
(3) the name and version of the operating
system or application used to capture, create or record the
content;
(4) the time and date the content was created;
(5) information on any modifications made to
the content; and
(6) information on which portions of the
content have been changed by a generative artificial
intelligence system, if applicable;
O. "provider" means an individual who or an entity
that creates, codes, substantially modifies or otherwise
produces a generative artificial intelligence system;
P. "reasonable identity verification method" means
a method of collecting a person's identifying information
using:
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(1) a person's digital identification; or
(2) a commercial identity verification system
that verifies identity using a:
(a) government-issued identification
document;
(b) biometric system; or
(c) commercially reasonable method that
relies on public or private transactional data to verify the
identity of an individual;
Q. "state-of-the-art techniques" means techniques
with similar performance, reliability and cost compared to the
most advanced techniques internally or commercially available
within the twelve months preceding the date on which the
technique is used;
R. "synthetic content" means content that has been
produced or significantly modified from its original form by a
generative artificial intelligence system;
S. "transactional data" means a sequence of
information that documents an exchange, agreement or transfer
between two or more parties used for the purpose of completing
a request or event. "Transactional data" includes records from
mortgage, educational and employment entities;
T. "watermark" means information that is embedded
into content for the purpose of communicating the content's
provenance, history of modification or history of conveyance;
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and
U. "watermark decoder" means a software tool or
online service that can read or interpret a watermark and
provide as output the provenance data associated with the
watermark.
SECTION 3. [NEW MATERIAL] IMPROPER DISSEMINATION OF
COVERED SYNTHETIC CONTENT--CIVIL LIABILITY.--
A. A private cause of action against a person for
the nonconsensual dissemination of covered synthetic content
exists when:
(1) the person publicly disseminates covered
synthetic content with:
(a) knowledge that a depicted person in
the covered synthetic content did not consent to the
dissemination; and
(b) the intent to harass, entrap,
defame, extort or otherwise cause financial or reputational
harm to the depicted person;
(2) the covered synthetic content
realistically represents a depicted person engaging in conduct
that the depicted person did not actually engage in; and
(3) the depicted person is identifiable from:
(a) the covered synthetic content alone;
or
(b) other personal information displayed
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or disseminated in connection with the covered synthetic
content.
B. The fact that a depicted person consents to the
creation of covered synthetic content or to the nonpublic
distribution of the covered synthetic content shall not
constitute a defense to liability for a person who improperly
disseminates the covered synthetic content as provided in
Subsection A of this section.
C. A person shall not be liable for improper
dissemination of covered synthetic content as provided in
Subsection A of this section if:
(1) the dissemination is made:
(a) for the purpose of a criminal
investigation or prosecution that is otherwise lawful;
(b) for the purpose of or in connection
with a report of unlawful conduct to appropriate authorities;
or
(c) in the course of seeking or
receiving medical or mental health treatment, and the covered
synthetic content is protected from further dissemination by
the recipient;
(2) the person who disseminated the covered
synthetic content commercially obtained the content for the
purpose of the person's lawful sale of goods or services,
including artistic creations, and the depicted person knew that
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the covered synthetic content would be created and disseminated
commercially;
(3) the covered synthetic content relates to a
matter of public interest; the dissemination of the content
serves a lawful public purpose; and the person that
disseminates the content clearly identifies that the content is
covered synthetic content;
(4) the dissemination is for legitimate
scientific research or educational purposes, the covered
synthetic content is clearly identified as such and the person
who disseminates the content acts in good faith to minimize the
risk that the covered synthetic content will be further
disseminated;
(5) the dissemination is made for use in legal
proceedings and:
(a) is consistent with common practice
in civil proceedings necessary for the proper functioning of
the court system; or
(b) the content is protected by court
order that prohibits any further dissemination; or
(6) the dissemination constitutes criticism,
comment, satire, parody, news reporting, teaching, scholarship
or research and a reasonable consumer receiving the content
would not believe it to accurately represent the depicted
person's speech or conduct.
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D. In a civil action filed pursuant to this
section, the court may issue an order to protect the privacy of
the plaintiff, including protection by:
(1) allowing the plaintiff to use a pseudonym
in any documents filed in the action that will be publicly
available;
(2) requiring the parties to the action to
redact all of the plaintiff's personal identifying information
from any documents filed in the action that will be publicly
available or to file such documents under seal; or
(3) issuing a protective order for purposes of
discovery in the action, which may include an order indicating
that any intimate visual depiction or digital forgery shall
remain in the care, custody and control of the court.
E. In an action filed pursuant to this section, a
prevailing plaintiff may recover reasonable attorney fees and
costs and:
(1) liquidated damages in the amount of ten
thousand dollars ($10,000); or
(2) actual damages sustained by the plaintiff.
SECTION 4. [NEW MATERIAL] IMPROPER DISSEMINATION OF
COVERED SYNTHETIC CONTENT--CRIMINAL LIABILITY.--
A. Improper dissemination of covered synthetic
content consists of knowingly disseminating or presenting any
likeness of an identifiable person in covered synthetic content
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with the purpose of harassing, entrapping, defaming, extorting
or otherwise causing financial or reputational harm to the
depicted person.
B. A person who commits improper dissemination of
covered synthetic content is guilty of a fourth degree felony
and shall be sentenced pursuant to the provisions of Section
31-18-15 NMSA 1978.
C. The attorney general and the district attorney
in the county with jurisdiction shall have concurrent
jurisdiction to enforce the provisions of this section.
SECTION 5. [NEW MATERIAL] IDENTIFICATION OF, LABELING AND
CLASSIFYING SYNTHETIC CONTENT.--
A. A provider shall place an imperceptible
watermark that is designed to be as difficult to remove as is
reasonably possible using state-of-the-art techniques into
covered synthetic content that is produced or significantly
modified by a generative artificial intelligence system that
the provider makes available. A watermark shall:
(1) identify content as synthetic and identify
the provider to ensure that if a sample of the content is
corrupted, downscaled, cropped or otherwise damaged, the
watermark information will remain; and
(2) be compatible with widely used industry
standards.
B. If covered synthetic content is too small to
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directly contain the required provenance data that is part of a
watermark, the provider shall, at a minimum, attempt to embed
provenance data into the content that identifies the content as
partially or entirely synthetic and communicates the following
provenance data in order of priority:
(1) the name of the provider;
(2) the name and version number of the
artificial intelligence system that generated the content;
(3) the time and date the content was created;
and
(4) if applicable, the specific portions of
the content that are synthetic.
C. A provider shall:
(1) make available, at no cost to the public,
a watermark decoder that:
(a) provides an easy and quick method
for a user of the decoder to assess the provenance of a single
piece of content; and
(b) to the greatest extent possible,
adheres to relevant national or international standards;
(2) before the release of any new generative
artificial intelligence system, and annually thereafter,
conduct artificial intelligence red-teaming involving third-
party experts to test whether watermarks in the system can be
easily removed from covered synthetic content produced by a
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provider's generative artificial intelligence system, as well
as whether the provider's generative artificial intelligence
systems can be used to falsely add watermarks to otherwise
nonsynthetic content;
(3) if the provider allows its generative
artificial intelligence system to be downloaded and modified,
conduct additional artificial intelligence red-teaming to
assess whether the provider's system's watermark
functionalities can be disabled without authorization;
(4) make summaries of its artificial
intelligence red-teaming exercises publicly available in
electronic form and provide a clearly labeled link to the
summaries on the provider's internet website home page. The
link shall be similar in appearance and size relative to other
links on the same web page. The provider shall remove from the
summaries any details that pose an immediate risk to public
safety or provide information that could be used to disable or
circumvent the functionality of watermarks specified in the
Artificial Intelligence Synthetic Content Accountability Act;
(5) submit a full report of each artificial
intelligence red-teaming exercise it conducts to the attorney
general within six months of completion of the exercise;
(6) within ninety-six hours of discovering a
material vulnerability or failure in a generative artificial
intelligence system related to the erroneous or malicious
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inclusion or removal of provenance data or watermarks, report
the vulnerability or failure to the attorney general; and:
(a) notify other providers that may be
affected by similar vulnerabilities or failures in a manner
that allows the other providers to protect their own artificial
intelligence systems but does not compromise the reporting
provider's systems or disclose the reporting provider's
confidential or proprietary information; and
(b) use commercially reasonable efforts
to notify parties affected by the vulnerability or failure
identified, including notification to online platforms,
researchers or users who received incorrect results from a
watermark decoder or users who produced covered synthetic
content that contained incorrect or insufficient provenance
data; provided, however, that a provider shall not be required
to notify an affected party whose contact information the
provider has not previously collected or retained; and
(7) make any report to the attorney general
required pursuant to this section publicly available by
providing a clearly labeled link to the report on the
provider's internet website home page. The link shall be
similar in appearance and size relative to other links on the
same web page; provided, however, that if public disclosure of
the report could or does present public safety risks, a
provider may instead:
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(a) post a summary disclosure of the
reported material vulnerability or failure; or
(b) for no longer than thirty days,
delay the public disclosure of the report until the public
safety risks have been mitigated. If a provider delays public
disclosure, the provider shall also document all efforts to
resolve the material vulnerability or failure as quickly as
possible.
D. A provider and any distributor of software or
online services shall not make available to any person a
system, application, tool or service that is designed to remove
watermarks from covered synthetic content.
E. A large online platform shall use the provenance
data of content and state-of-the-art techniques to classify
content that is uploaded by users. If the large online
platform is able to detect and interpret the provenance data of
content, using that provenance data, the large online platform
shall classify the content as "fully synthetic", "partially
synthetic", "nonsynthetic" or "nonsynthetic with minor
modifications". If content uploaded to or distributed on a
large online platform by a user does not contain provenance
data, or if the provenance data cannot be interpreted or
detected by the platform, the platform shall classify the
content as "content of unknown provenance".
F. For content classified as content of unknown
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provenance according to Subsection E of this section, a large
online platform shall further use state-of-the-art techniques
to classify content as "possibly covered synthetic content with
unknown provenance" or "possibly nonsynthetic content of
unknown provenance".
G. A large online platform shall use labels to
disclose the classification assigned to content in accordance
with this section. The labels shall prominently display
whether content was classified using provenance data or state-
of-the-art techniques and which classification the content was
assigned, as provided in Subsections E and F of this section.
If content was classified according to provenance data, the
platform shall ensure that a user is able to click or tap on a
label to inspect provenance data, which shall be presented in a
clear and simple format. If content was classified according
to state-of-the-art techniques, the platform shall include an
additional label that warns users that the technique may have
incorrectly classified the content and discloses the
approximate error rate of the technique used to classify the
content.
H. Disclosures required pursuant to this section
shall be readily legible to an average viewer or, if the
disclosure is made in audio format, shall be clearly audible.
A disclosure in audio form shall occur at the beginning and end
of a piece of audio content and shall be presented in a
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prominent manner and at a comparable volume and speaking
cadence as other spoken words in the content.
I. A user of a large online platform shall have
reasonable opportunity to appeal the classification of content
by a large online platform.
SECTION 6. [NEW MATERIAL] ENFORCEMENT.--
A. The attorney general may enforce the provisions
of the Artificial Intelligence Synthetic Content Accountability
Act and may promulgate any rules necessary to implement and
enforce the provisions of that act.
B. Prior to filing a civil action to enforce the
Artificial Intelligence Synthetic Content Accountability Act,
the attorney general may issue a civil investigative demand
based on a reasonable belief that a person may be in
possession, custody or control of an original or copy of any
book, record, report, memorandum, paper, communication,
tabulation, map, chart, photograph, mechanical transcription or
other document or recording relevant to the subject matter of
an investigation of a probable violation of that act. A person
issued an investigative demand shall produce the material
sought and shall permit it to be copied and inspected. The
demand of the attorney general and any material produced in
response to it shall not be a matter of public record and shall
not be published by the attorney general except by order of the
court.
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C. Upon reasonable belief that there has been a
violation of the Artificial Intelligence Synthetic Content
Accountability Act, the attorney general:
(1) may bring an action in the name of the
state to enforce that act;
(2) may petition the district court for
injunctive relief;
(3) shall not be required to post bond when
seeking a temporary or permanent injunction; and
(4) may recover on behalf of the state a
penalty of not less than five thousand dollars ($5,000) and not
more than ten thousand dollars ($10,000) for each violation of
that act.
SECTION 7. [NEW MATERIAL] POSTING SYNTHETIC CONTENT--
IDENTITY VERIFICATION REQUIRED.--
A. A large online platform shall use a reasonable
identity verification method to verify a platform user's
identity before allowing the user to post content on the
platform if the content:
(1) was classified by the platform as fully
synthetic, partially synthetic or possibly covered synthetic
content of unknown provenance as provided in the Artificial
Intelligence Synthetic Content Accountability Act; and
(2) purports to depict reality.
B. The verification process provided for in
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Subsection A of this section shall be performed each time a
platform user attempts to post content that meets the
descriptions in Paragraph (1) or (2) of that subsection or if
more than sixty minutes has elapsed since the previous
verification was performed in connection with that user's
content; provided, however, that verification shall not be
required to be performed more frequently than every sixty
minutes.
C. A large online platform shall protect any
information obtained while performing actions required pursuant
to this section using, at a minimum, the industry standard to
protect users' most sensitive information, including medical or
financial data.
D. A large online platform shall not use
identification information provided by a user or obtained by
the platform in the process of actions required pursuant to
this section for any purpose other than compliance with this
section.
E. A large online platform shall disclose
information obtained pursuant to actions performed pursuant to
this section only as required by a court order. A court shall
only issue an order for disclosure of such information in a
civil case if:
(1) the plaintiff in the case undertakes
efforts to notify the person that posted the content and whose
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information was obtained through a verification process
pursuant to this section that they are the subject of a
subpoena or application for an order of disclosure, and the
person has had a reasonable opportunity to oppose the subpoena
or application;
(2) the plaintiff identifies and sets forth
the exact statements or provides information sufficient to
identify the content about which the case was filed;
(3) the plaintiff sets forth a prima facie
case against the person that posted the content and whose
information was obtained through a verification process
pursuant to this section by producing evidence for each element
of the cause of action; and
(4) the court determines that the rights of
the person that posted the content and whose information was
obtained through a verification process pursuant to this
section under the first amendment to the United States
constitution are outweighed by the strength of the prima facie
case presented by the plaintiff and the necessity for the
disclosure of the person's identity.
F. A large online platform shall disclose
information obtained through actions performed pursuant to this
section only as required by a court order. A court shall only
issue an order for disclosure of such information in a criminal
case if the attorney general:
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(1) has a warrant covering the information
sought; or
(2) offers specific and articulable facts
showing reasonable grounds to believe that the information
sought is relevant and material to an ongoing criminal
investigation.
G. A large online platform shall clearly and
prominently disclose to platform users that information
obtained by the platform through the platform's compliance with
the Artificial Intelligence Synthetic Content Accountability
Act will be released only pursuant to a court order.
SECTION 8. [NEW MATERIAL] SEVERABILITY.--If any part or
application of the Artificial Intelligence Synthetic Content
Accountability Act is held invalid, the remainder of its
application to other situations or persons shall not be
affected.
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