New Washington State Law Targets Deepfake Porn

HB 1999, sponsored by State Rep. Tina Orwall (D-Des Moines), “addresses the growing concern of deepfakes and other forms of digitally altered content depicting minors in sexually explicit situations,” according to a statement issued by Orwall’s office late last week.

“The online exploitation of intimate images has a devastating impact on individuals, ultimately leaving lasting scars,” Orwall said. “We have a responsibility to protect Washingtonians from this type of abuse in all forms. With this law, survivors of intimate and fabricated image-based violence have a path to justice and must no longer tolerate being harmed.”

Among other things, the new law “expands existing criminal offenses to include creating, possessing, distributing, or viewing fabricated intimate images of minors engaged in sexual acts,” with penalties for such acts now mirroring “those for distributing non-fabricated child pornography,” and creates a new offense for “disclosing fabricated intimate images,” which will specifically target “individuals who knowingly disclose fabricated intimate images of others without their consent, causing harm to the depicted person.”

The new law also creates a civil cause of action for both adults and minors under the “Uniform Civil Remedies for the Unauthorized Disclosure of Intimate Images Act” (UCRUDIIA) and “clarifies that valid consent for such disclosure must be in writing.”

Under the new law, a person “commits the crime of disclosing fabricated intimate images when the person knowingly discloses a fabricated intimate image of another person and the person disclosing the image (a) knows or should have known that the depicted person has not consented to the disclosure; and (b) knows or reasonably should know that disclosure would cause harm to the depicted person.”

The law provides for exceptions with respect to “disclosures made in the public interest including… the reporting of unlawful conduct, or the lawful and common practices of law enforcement, criminal reporting, legal proceedings, or medical treatment; or mages that constitute commentary, criticism, or disclosure protected by the Washington state Constitution or the United States Constitution.”

The law stipulates that in any prosecution undertaken under the statute “it is not a defense that (a) the perpetrator lacked knowledge of whether the disclosed image had been created or altered by digitization; or (b) the depicted person consented to the creation or alteration of the image.” In other words, even if the person depicted consented to the “creation or alteration of the image,” if that person does not consent to the “disclosure” of the image, then the act of disclosure is still a crime under the law.

Under 18 USC s. 2252A, federal law already prohibits certain acts involving fabricated sexually explicit images, including offering or requesting content that appears to be child sexual abuse material (CSAM) but is not, and prohibits the production of adapted or modified depictions of identifiable minors engaged in sexual activity. The federal law in question was challenged in the case U.S. v. Williams, in which it was upheld by the court.

On the other hand, in Ashcroft v. Free Speech Coalition, the court struck down a previous prohibition on any content that appears to depict a minor engaged in sexual conduct, holding that the prohibition was unconstitutionally overbroad.

Attorney Larry Walters of FirstAmendment.com told YNOT the question of whether the new Washington law can survive court scrutiny will hinge on just how expansive the court reads the new statute to be.

“Prohibiting the use of AI to create specific types of media triggers First Amendment overbreadth concerns,” Walters said. “The question comes down to whether the statute prohibits a substantial amount of protected speech in relation to its legitimate sweep. The government has an interest in prohibiting depictions of identifiable minors engaged in sexual conduct. Whether this statute goes too far in seeking to accomplish that goal is a question the courts will likely wrestle with in future cases. In some instances, the law may be declared unconstitutional as applied to the facts of the case if the government seeks to enforce it too expansively.”

You can read the full text of the new statute here.

Deepfake image by Markus Winkler from Pexels