Criminalization of Ticket Purchasing Software in New York, Arts and Cultural Affairs Law Section 25.

A seemingly obscure section of NY Law, Arts and Cultural Affairs Law Section 25.24 has undergone some major changes in the NY legislature this past term. As of the writing of this post, it has passed through both the House & Assembly and is awaiting Governor Cuomo’s signature in the coming days. The law in its current form has been on the books since 2010, but it appears that this term the legislature sought to beef up some of its provisions and add a criminal element to it.

The aim of the law is to curb the use of what are commonly referred to as “ticket bots” in obtaining tickets to theater, sports and other entertainment events. While there are a number of significant changes to the proposed law, the focus of this post is on the newly added criminal element of Arts and Cultural Affairs Law 25.24, slated take effect within 90 days of Governor Cuomo’s signature.

The proposed changes classify certain conduct as an A Misdemeanor, which under the NY Penal Law can carry up to a year in jail. So what type of conduct will be criminalized under the new changes to ACA 25.24?

In simplified terms, the proposed changes criminalize 3 categories of activity: 1) Intentionally using ticket purchasing software to buy tickets; 2) Having any interest in or control over the operation of ticket purchasing software; and 3) reselling or even offering to resell tickets known to be purchased with ticket purchasing software.

But do the criminal provisions of the law have any teeth?

In practical terms, the individuals or companies that the proposed changes seek to prosecute may not be located within New York State or even within the United States. Prosecuting those individuals or entities for misdemeanor crimes in the New York Criminal Courts may test the jurisdictional limits of those courts. Further, proof beyond a reasonable doubt of the essential elements of these crimes will require significant investigation of a web of IP addresses, Internet communications, and proof of how the software works, which in a practical sense seems like a heavy burden all for the purpose of prosecuting a misdemeanor offense.

What seems more likely is that the third offense category will impact the street-level ticket resellers and will result in an increase in accusations that their tickets are being purchased using “ticket bot” software. Envision a scenario where a street-level ticket reseller gets arrested, his cell phone searched and seized, and some text messages vaguely indicating that the tickets were purchased utilizing some kind of software leads to criminal charges under the proposed changes.

At the Federal Level, there is also pending legislation called the BOTS or Better Online Ticket Sales Act of 2016, which seeks to give the Federal Trade Commission power to enforce the law in certain situations. However, that legislation is much less imminent, and will be the subject of a future post if and when it becomes pertinent.

Please note that this post should not be considered legal advice and is for informational purposes only. For questions or comments, contact Joshua J. Horowitz, Esq. at Joshua.horowitz@techlawny.com or by telephone at 212-203-9011.