'Deep Fake' Legislation Is On The Way, Threatening Free Speech Protections

from the how-do-you-solve-a-problem-like-AI-making-Maria-sing-DJ-Assault-tracks dept

The proliferation of deep fake videos is going to start having an effect on First Amendment protections. Hint: it's not going to make these protections any stronger.

"Deep fake" may be easier to define than "fake news," but that doesn't mean there won't be collateral damage. The issue isn't a new one. Faking reality has been around nearly as long as reality itself. Cheap tools that make this anyone's game is the only thing new. Before we had deep fakes, we had Photoshop and its imitators.

Video used to be the last bulwark of truth. It couldn't be faked easily. But this too has been abused for years. Editing video to make it show what the editor wants it to show is a tactic that has been used for years. Now, however, tools make it possible to put new words in peoples' mouths, as was demonstrated to devastating satirical effect when a video of Facebook founder Mark Zuckerberg was tricked out to make it appear as though Zuckerberg was promising to swallow every user's data and privacy.

This is prompting legislators to act. Concerns over the potential of deep fakes to mislead people or, in some cases, destroy the unwitting participant's reputation, are leading to the production of legislation from people not entirely sure what they're dealing with.

Apparently shaken by a deep fake video of former president Barack Obama calling President Trump a "dipshit" and Housing Secretary Ben Carson "brainwashed," a California assemblyperson is pitching anti-deep fake legislation. Ben Christopher of CalMatters has the details:

“I immediately realized, ‘Wow, this is a technology that plays right into the hands of people who are trying to influence our elections like we saw in 2016,’” said Assemblyman Marc Berman, a Democrat whose district includes Silicon Valley.

So Berman, chair of the Assembly’s election committee, has introduced a bill that would make it illegal to “knowingly or recklessly” share “deceptive audio or visual media” of a political candidate within 60 days of an election “with the intent to injure the candidate’s reputation or to deceive a voter into voting for or against the candidate.”

This bill may be narrowly-crafted to target only perceived election interference, but that still isn't enough to ward off possible Constitutional problems. For one, this law would punish anyone "knowingly" sharing something "deceptive." The problem is the word "deceptive." It doesn't just cover deep fakes that put words in candidates' mouths. It would also cover videos edited to show candidates in a bad light by taking comments or statements out of context. This has never been illegal before. Just because tech is allowing people to do scary new things with video processing tools is no reason to start criminalizing common campaign tactics.

Unsurprisingly, this legislative effort is opposed by the ACLU, EFF, and two major California journalism organizations. The news publishers point out this effort will do damage to protected speech while doing almost nothing to ensure election integrity.

[W]hitney Prout, staff attorney with the publishers’ association, called the bill “an ineffective and frankly unconstitutional solution that causes more problems than it solves.” She warned that, if enacted into law, it could discourage social media users from sharing any political content online, lest it be a fake and they be held legally liable. Another possible consequence, she said, is that campaigns plaster every attack ad with a deepfake disclosure to shield themselves from lawsuits, leaving the voting public even more confused.

This issue isn't going to go away though, and it's inevitable laws will be passed to try to curtail the harm caused by deep fakes. At the federal level, the discussion has gotten a bit hyperbolic, with senators calling deep fakes a threat to national security, and when those words are used to justify Congressional action, the American public always comes out on the losing end.

Filed Under: 1st amendment, california, deception, deep fakes, free speech, intent, legislation, marc berman


Reader Comments

Subscribe: RSS

View by: Time | Thread


  1. icon
    hij (profile), 9 Jul 2019 @ 8:37am

    Anti-FOX News Legistlation

    This is going to destroy FOX news. Do the means justify the ends?

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, 9 Jul 2019 @ 10:02am

    everything to do with 'FAKE' anything only concerns those who are trying to hide what the truth is about what they are up to and that, in general, is NOT ordinary people! it's the fuckers who have wealth, power and fame and they dont want anyone questioning what they do, with whom, when, how or where! they just expect to get away with whatever it is! if it were the ordinary people, however, there would be shit hitting fan in every direction just so these same assholes could find out who was saying-doing whatever!!

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Hero, 9 Jul 2019 @ 10:06am

    How about legislation that prevents elected and appointed government officials from lying to the public?

    It's illegal for citizens to make false statements to Congress, yet Congress is free to make false statements to the public. Talk about a double standard...

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, 9 Jul 2019 @ 10:23am

    Re:

    alright dude, I understand your feelings... but you gotta go to a park or something and chill out looking at some trees. Failing that you may need some meds to manage

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, 9 Jul 2019 @ 10:26am

    How about legislation against making up new 'scary sounding' adjectives to drum up support for legislation?

    Fake News = Propaganda
    Deep Fakes = Satire or Impersonation

    We either have existing laws to deal with these things and/or they are protected as free speech.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, 9 Jul 2019 @ 10:28am

    Re:

    Making up new words is one of the things that is "protected as free speech..."

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, 9 Jul 2019 @ 10:28am

    Rapidly approaching one of the worse dystopian futures. Extreme self serving governments supporting extreme self serving mega corps with technology that obscures the truth even further.

    Hell people were fooled to believe easily dispelled lies even though there was plenty of evidence to the contrary just because they like the person telling the lie.

    Now we gotta deal with technology that quickly getting to the point that even the most intelligent and learned citizens can't easily figure them out... and it doesn't help that the government and corporations have been trying to make consumers dumber and dumber pulling funding from schools soft skill departments so critical thinking takes the back seat to just filling out bubbles in a scan-tron correctly to pre-selected answers to uncreative questions.

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, 9 Jul 2019 @ 10:29am

    Re: Anti-FOX News Legistlation

    Project Veritas will not be happy - lol

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 9 Jul 2019 @ 10:30am

    Re: Re:

    a shot of tequila works

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, 9 Jul 2019 @ 10:31am

    Re:

    Apparently it is only illegal for some, while others get a free pass.

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, 9 Jul 2019 @ 10:33am

    Let me guess .... they will attempt to outlaw something without defining it.

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, 9 Jul 2019 @ 10:33am

    As always, it will be selective enforcement. Just like the way the slowed-down "drunk" Nancy Pelosi video caused a leftist outrage, prompting Youtube to delete the video and all copies while ignoring the many slowed-down Trump videos. And since this bill is in California, it shouldn't be too hard to figure out on which side of the political spectrum the legal hammer will fall the hardest.

    But then what about all the photoshopped magazine covers, from Donald Trump, to make him look evil or [even more] clownish, to most every over-40 female celebrity to make them look decades younger. It's all fake, and has been for many decades, yet no one ever seems to get called out for it.

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, 9 Jul 2019 @ 10:53am

    It would also cover videos edited to show candidates in a bad light by taking comments or statements out of context. This has never been illegal before. Just because tech is allowing people to do scary new things with video processing tools is no reason to start criminalizing common campaign tactics.

    I've always felt that this fell firmly into the "not ok" camp. I don't know if I'd go so far as to call for it being made illegal, but I also don't think that blowing the act off as "common campaign tactics" is the right way to go.

    reply to this | link to this | view in thread ]

  14. This comment has been flagged by the community. Click here to show it
    identicon
    D. Bunker, 9 Jul 2019 @ 10:56am

    Yet you SWOON for VENEER FAKES like "Trump-Russia collusion"!

    There was / is not a grain of truth to that, yet Techdirt ran it for months until my hooting convinced Masnick to drop it.

    That was only Deep State / media / masnicks making allegations and expecting to create a milieu in which could over-turn the election. Period.

    Bet there are still some here who believe the story fully -- without being to state a single crime!

    And meanwhile, you deliberately overlook the actual crimes of Comey, Strzok and other gov't officials in going ahead knowing was a fabrication.

    Why did / do you believe that without basis, Techdirt? Why do you now, after two years of investigation turned up ZERO, NOT want the Deep State criminals prosecuted for attempting to over-turn an election? ... Answer is obvious.

    You may be a little skeptical of videos in future, yet you're not going to look into the past and consider whether you've been fooled by other "narratives", like the alleged WMD in Iraq, because that WOULD definitely undermine everything you believe. You can't handle reality.

    reply to this | link to this | view in thread ]

  15. icon
    ECA (profile), 9 Jul 2019 @ 10:57am

    Anyone have good ideas??

    " scary new things with video processing tools is no reason to start criminalizing common campaign tactics.

    Unsurprisingly, this legislative effort is opposed by the ACLU, EFF, and two major California journalism organizations. The news publishers point out this effort will do damage to protected speech while doing almost nothing to ensure election integrity. "

    Lets see..
    Easy part..
    FAKE news. If it is OPINIONATED...then its NOT NEWS. this is not the weather and you are guessing 10% of the time...

    Then comes TV/Internet.
    SIGN your Garbage.
    "This video is sponsored by ???" Is a great thing. then we know who to blame or chase for being Stupid.
    No sub/hidden groups that Disappear After the fact.
    And I dont care who it is, event he Russians can have an opinion, but they have to SIGN the advert/comment/discourse...

    Dont mind opinions, and even 1/2 facts, where both sides must prove Right/wrong, to get the truth...as with Trumps taxes.. They have to Prove one side or the other...

    And Nothing should be Done to a lyer/Lier.. Just STAND them up to be seen and ridiculed.. And those responsible for Backing it..

    reply to this | link to this | view in thread ]

  16. This comment has been flagged by the community. Click here to show it
    identicon
    D. Bunker, 9 Jul 2019 @ 11:03am

    Re: Anti-FOX News Legistlation

    This is going to destroy FOX news. Do the means justify the ends?

    Sheesh. You've already fallen for the fiction that Fox is actually opposition, when it's always been just a trap giving a little hope with "cultural" items while subtly planting the few points They actually care about.

    Oh, and Rush Limbaugh and Hannity are paid saboteurs too, corporatists, globalists, against taxing The Rich, for NAFTA, war-mongers and ardent Zionists, just more "neo-conservatives" to subvert the genuine.

    Wise up.

    reply to this | link to this | view in thread ]

  17. identicon
    Anonymous Coward, 9 Jul 2019 @ 11:27am

    Re:

    It's a good reason to vote against a candidate, if they're caught doing that.

    reply to this | link to this | view in thread ]

  18. icon
    Thad (profile), 9 Jul 2019 @ 11:56am

    Re:

    How about legislation that prevents elected and appointed government officials from lying to the public?

    That's one of those things that sounds great but would be pretty difficult to implement in real life. Convictions related to lying -- perjury, defamation, etc. -- are often very difficult to get. In many cases, they require proving intent. Making a false statement is not necessarily the same thing as lying; if a politician says something that's incorrect, how do you prove that they knew it was incorrect and deliberately misstated it? What's the threshold for proving a statement is intended as a literal fact and not rhetorical hyperbole?

    reply to this | link to this | view in thread ]

  19. icon
    Stephen T. Stone (profile), 9 Jul 2019 @ 12:03pm

    You can't handle reality.

    Pot, kettle, black.

    reply to this | link to this | view in thread ]

  20. identicon
    Anonymous Coward, 9 Jul 2019 @ 12:43pm

    Re: Re: Anti-FOX News Legistlation

    Just a warning to others, Globalist is a dog whistle for 'rich jew'

    Which is why George Soros is commonly called a globalist but other similar rich people who do the same or worse as Soros are not called a Globalist because they are new Jewish.

    reply to this | link to this | view in thread ]

  21. identicon
    Anonymous Coward, 9 Jul 2019 @ 12:57pm

    Re: Re:

    Convictions related to lying -- perjury, defamation, etc. -- are often very difficult to get. In many cases, they require proving intent.

    The FBI, and the prosecutors to whom they refer "Lying to the FBI" charges, seem to disagree with you. It'd be nice if you were right, but in practice, these charges only require showing that the statement was not consistent with reality and a token claim that a sufficiently uninformed agent plausibly could have been misled by the statement in a way that, were they misled, would have adversely impacted official business. It doesn't require showing intent, and usually doesn't even require showing that the agent was actually misled by the statement.

    reply to this | link to this | view in thread ]

  22. identicon
    Anonymous Coward, 9 Jul 2019 @ 1:23pm

    Re: Re:

    The problem is that it's usually not the candidate that's doing it, probably for that exact reason. It's some PAC getting its money from who-knows-where: "Paid for by so-and-so. Not affiliated with any presidential candidate."

    Could it be classified as defamation? There's definitely an intent to harm reputation. The words used were actually spoken. It's just the lack of context changes their meaning.

    reply to this | link to this | view in thread ]

  23. identicon
    Anonymous Coward, 9 Jul 2019 @ 2:22pm

    While I do worry about the 1st amendment shrinking, I also have to worry about what this technology will be used for, and how it's already being used.

    For example, see the pimple on Tulsi Gabbard's chin during the Democratic debate that magically disappears in the middle of it. Either they gave her a pimple, or they erased one. Either way someone at MSNBC was actively editing, in real time, what we saw.

    reply to this | link to this | view in thread ]

  24. This comment has been flagged by the community. Click here to show it
    identicon
    Steve Marz, 9 Jul 2019 @ 2:38pm

    WE HAVE TO AMEND SECTION 230 AND MY POLITICAL FAMILY WILL

    SORRY TECHDIRT, SECTION 230 IS GOING TO BE AMENDED. LOOK AT THIS MAN SPITTING IN ARIZONA ICE TEA AT A SUPERMARKET. SPITTING AND LICKING ICE CREAM AND PUTTING IT BACK ON THE SHELVES IS BECOMING A NEW AND DANGEROUS TREND. THAT IS BECAUSE INTERNET COMPANIES ARE NOT TAKING THE RESPONSIBILITY OF PULLING DOWN VIDEO IN TIME. DO NOT GIVE ME THIS SHIT. MY FAMILY IS WORKING FOR TRUMP AND IS PUSHING SECTION 230 TO BE AMENDED. I READ YOUR BULLSHIT AND ITS BULLSHIT AND WHEN WE AIR GUYS LIKE THIS SPITTING IN ARIZONA ICE TEA PEOPLE WILL DEMAND THAT THOSE VIDEO GET SHUT DOWN AND ONCE SECTION 230 IS AMENDED THE INTERNET COMPANIES WHO ARE BANNING TRUMP SUPPORTERS WILL BE PUT OUT OF BUSINESS AND THEY DESERVE TO BE

    reply to this | link to this | view in thread ]

  25. icon
    crade (profile), 9 Jul 2019 @ 2:46pm

    Re: WE HAVE TO AMEND SECTION 230 AND MY POLITICAL FAMILY WILL

    Exactly.. Spitting in iced tea and licking ice cream and putting it back was perfectly fine until people knew it was happening. Shut down the videos and give us back our blissful ignorance!

    reply to this | link to this | view in thread ]

  26. icon
    Stephen T. Stone (profile), 9 Jul 2019 @ 3:15pm

    Are you okay? Have you had enough to eat and drink today? Are you getting enough oxygen?

    reply to this | link to this | view in thread ]

  27. identicon
    Anonymous Coward, 9 Jul 2019 @ 4:30pm

    Re: Re: Re:

    The problem is that it's usually not the candidate that's doing it, probably for that exact reason. It's some PAC

    Anything said by a PAC should be taken to represent the views of the candidate, unless they've specifically repudiated the PAC or its message.

    Could it be classified as defamation?

    Doesn't matter. Trying to punish people for speech via the legal system will take too long and give them a martyr complex.

    reply to this | link to this | view in thread ]

  28. identicon
    Anonymous Coward, 9 Jul 2019 @ 5:25pm

    Re:

    Why, yes, yes, and yes. Thank your for your sarcasm disguised as concern.

    Sneer all you like, but plenty of us saw it happen, and you can go check the youtube videos for yourself. They also cut Andrew Yang's mic at points.

    Frankly, I'm astounded that you pretend shenanigans couldn't possibly be afoot at a Democrat debate, when we know for a fact that in 2016 a wee little leprechaun named Donna Brazile shared debate questions ahead of time with her royal Hillaryness. But go ahead and bury your head in the sand, you'll just get more Trump.

    reply to this | link to this | view in thread ]

  29. icon
    Gary (profile), 9 Jul 2019 @ 5:35pm

    Re:

    Either they gave her a pimple, or they erased one.

    Yes, they kicked in a video filter to soften the image. Most all digital processing does this to some extent. Obviously someone kicked it up a notch at one point. This is exceptionally common with HD images. Your tinfoil, screwed on too tight.

    reply to this | link to this | view in thread ]

  30. identicon
    Anonymous Coward, 9 Jul 2019 @ 8:24pm

    Re:

    You seem to be upset, or on the verge of having an aneurysm, or both. I suggest calming down and using less caps.

    WE HAVE TO AMEND SECTION 230 AND MY POLITICAL FAMILY WILL

    Not if the people say no or the courts strike it down as unconstitutional you won't. Perhaps you would feel more at home in a country run by a dictatorship where you would get to make the rules. But you're not, so deal with it.

    SORRY TECHDIRT, SECTION 230 IS GOING TO BE AMENDED.

    And you know this how?

    LOOK AT THIS MAN SPITTING IN ARIZONA ICE TEA AT A SUPERMARKET. SPITTING AND LICKING ICE CREAM AND PUTTING IT BACK ON THE SHELVES IS BECOMING A NEW AND DANGEROUS TREND.

    Really? How do you figure? And why do you think that this hasn't been going on since supermarkets first came to be? You're naive if do.

    THAT IS BECAUSE INTERNET COMPANIES ARE NOT TAKING THE RESPONSIBILITY OF PULLING DOWN VIDEO IN TIME.

    Why is it not the responsibility of the people doing the licking to not do it in the first place?

    DO NOT GIVE ME THIS SHIT.

    Because it's not and I will absolutely give it to you.

    MY FAMILY IS WORKING FOR TRUMP

    I question your family's life choices but to each his own I suppose. Also, so?

    AND IS PUSHING SECTION 230 TO BE AMENDED.

    That doesn't make it a sure thing or even a good idea.

    I READ YOUR BULLSHIT AND ITS BULLSHIT

    Care to explain why?

    WHEN WE AIR GUYS LIKE THIS SPITTING IN ARIZONA ICE TEA PEOPLE WILL DEMAND THAT THOSE VIDEO GET SHUT DOWN

    Oh? You know the nightly news has been airing videos like this for decades and no one has raised a fuss. But now suddenly it gets posted online and everyone has a conniption. Why? Are you implying that the nightly news should no longer air videos of people doing bad/stupid things as part of their news reporting?

    ONCE SECTION 230 IS AMENDED

    Continuing to repeat something you have no control over will not magically make it true.

    THE INTERNET COMPANIES WHO ARE BANNING TRUMP SUPPORTERS

    Well, the people they are banning might be Trump supporters but that's not the reason WHY they were banned. For proof, you can just look to the scads of other Trump supporters that are still on these platforms. There must be something special about these specific ones, like they perhaps broke the rules of using said platforms. And that says more about Trump and his supporters than it does about the internet companies.

    WILL BE PUT OUT OF BUSINESS AND THEY DESERVE TO BE

    Why and why? Removing 230 protections from the bigger companies like Facebook and Google is not likely to put them out of business, though possible I suppose. But they in no way deserve to be. They've done nothing blatantly illegal. Have they screwed up? Absolutely, but that hardly warrants them being put out of business.

    Take a chill pill.

    reply to this | link to this | view in thread ]

  31. identicon
    Anonymous Coward, 9 Jul 2019 @ 8:57pm

    Re: Re:

    You appear to have replied to the wrong comment. Or you are the same commenter and forgot/got confused as to which persona you were using to reply to which comment threads. It would not be the first time another AC was caught astroturfing.

    reply to this | link to this | view in thread ]

  32. identicon
    Anonymous Coward, 9 Jul 2019 @ 9:02pm

    Re:

    So? What if they were?

    And since the "whatever it was" (could have been fuzz or a flake of lipstick that fell off instead of a pimple or digital artifact) was there to begin with, the more likely explanation was that they erased it. Which seems to imply they were just trying to not embarrass her by airing some common skin blemishes that are usually covered up by makeup anyway, or it was something else that just fell off while she was talking.

    This would be more of a story if it wasn't a "pimple", or that it was more likely a piece of fuzz or lipstick that suddenly dropped off in the middle of the debate while she was talking.

    reply to this | link to this | view in thread ]

  33. identicon
    Anonymous Coward, 9 Jul 2019 @ 9:27pm

    Re: Re:

    How about the exact same ones for lying to congress? It may not cover every sort of falsehood but applying the exact same evenly to both helps keep it fair no matter how they set it.

    reply to this | link to this | view in thread ]

  34. identicon
    Anonymous Coward, 10 Jul 2019 @ 2:20am

    Anti-Deep-Fake Legislation

    Citizens shall not use Deep-Fakes, but the government can.

    reply to this | link to this | view in thread ]

  35. icon
    Toom1275 (profile), 10 Jul 2019 @ 8:01am

    Re:

    Pot, porcelain, black.

    FTFY

    reply to this | link to this | view in thread ]

  36. icon
    Toom1275 (profile), 10 Jul 2019 @ 8:05am

    'Deep Fake' Legislation Is On The Way

    So Congress is moving beyond not-read-by-humans bills to written-by-computers bills?

    reply to this | link to this | view in thread ]

  37. icon
    nasch (profile), 11 Jul 2019 @ 9:56am

    Re:

    The term "deep fake" is much more specific than "satire" or "impersonation" or even "satirical impersonation".

    reply to this | link to this | view in thread ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Techdirt Gear
Shop Now: I Invented Email
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.