California Anti-Deepfakes Law May Violate Free Speech Protections

Last week, California Governor Gavin Newsom signed into a law, as AVN.com reported, a new bill that effectively bans “deepfake” porn, as well as fake political videos created using the same artificial intelligence technology. But those laws appear to violate constitutional free speech protections, civil liberties advocates say, according to a new report by Business Insider. The new laws prohibit deepfake political videos, but in the case of deepfake porn, the law allows California residents to sue anyone who uses their images in bogus porn videos. Deepfake porn uses AI technology to realistically superimpose the face of any person—though in practice, that person is almost always a woman and very often a celebrity—onto the bodies of porn performers in existing videos, making it appear that the uninvolved person is performing the sex acts seen in the video. But the porn performers whose bodies appear in deepfakes are also victims of the non-consensual deepfake porn. “I have real concerns about new legislation that focuses on the technology or techniques used to create the manipulated content,” Claire Wardle, executive director of the anti-disinformation nonprofit First Draft, told Business Insider. “It's the impact—especially the harm that it has—that we should be focused on.” Wardle said that laws against “revenge porn” and online harassment are already in place, and could be applied to deepfake, non-consensual porn videos as well.  David Greene of the online rights advocacy group Electronic Frontier Foundation added that existing laws against extortion, as well as against portraying individuals in a false or defamatory light, can also be used against purveyors of deepfake porn—as well as against fraudsters who create political deepfakes. A recent study found that despite the current alarm over the possibility of deepfake political videos being used to manipulate elections, 96 percent of the nearly 15,000 deepfake videos discovered online were porn, not politics. On the other hand, technology law expert Eric Goldman of Santa Clara University School of Law told The Verge last year that existing laws may not be enough to stop the damage caused by deepfake porn, or other AI-generated fake videos. “It’s almost impossible to erase a video once it’s been published to the internet,” Goldman told the site in 2018. “If you’re looking for the magic wand that can erase that video permanently, it probably doesn’t exist.” Photo By Gage Skidmore / Wikimedia Commons