Proposed law indicates much is still unknown about deepfakes

Two new laws banning deceptive videos known as deepfakes went into effect this month. But a bill introduced in the California Legislature on Wednesday appears to imply policymakers still have much to do — and learn — on the issue.

AB 1903 creates a legal definition of the term “deepfake” as a “recording that has been created or altered in a manner that it would falsely appear to a reasonable observer to be an authentic record of the actual speech or conduct of the individual depicted.”

The bill also bans creating such videos “of a sexual nature” without the subject’s consent, subject to criminal penalties, unless the result is “clearly satire or parody.” It would also grant $25 million to the University of California to study how to fight deepfakes.

The bill is substantially similar to AB 1280, a bill introduced last year by the same author, Assemblyman Tim Grayson, D-Concord. That bill failed a vote in the Assembly Public Safety Committee in the face of opposition from the American Civil Liberties Union of California, the California News Publishers Association and the California Public Defender’s Association.

In emailed comments, Grayson said he acted because deepfakes are “terrifying” and “cause real harm to people” that must be addressed before they appear on a “larger scale.”

“With this technology, individuals are able to place children and women — who are most often targeted — into pornographic videos without their consent and often without their knowledge,” Grayson said. “I want to ensure that we have every tool in our toolbox to protect young and vulnerable people online, so they don’t feel like their lives are ruined before they even begin.”

Pornography and political deception are the two mostly widely noted uses of deepfakes. The new laws address both. AB 602 created a private civil right of action for victims of deepfakes depicting sexual activity. AB 730 bars the creation of such deceptive videos “with the intent to injure the candidate’s reputation or to deceive a voter” within 60 days of an election and allows candidates who feel they have been the victim of a fake in a video or other media to seek injunctive relief.

But whereas the two new laws impose civil liability, Grayson’s measures would impose criminal sanctions.

“AB 1903 takes a step beyond last session’s AB 602 insofar as it creates potential criminal liability for deepfake portrayals of certain specified forms of ‘sexual conduct,’” said Douglas E. Mirell, a litigator who focuses on defamation, privacy and First Amendment issues as a partner with Greenberg Glusker Fields Claman & Machtinger LLP. “However, the range of activities proscribed by this proposed legislation are more narrow [than AB 602].”

One key difference is that AB 1903 is focused on those who create deepfakes, AB 602 can implicate those who merely “disclose” — i.e. “publish, make available, or distribute to the public” — videos they know are false.

He added, “I also welcome this legislation’s proposed appropriation of $25 million to the University of California ‘to identify and combat the inappropriate use of deepfake technology.’ Such funding is long overdue.”

However, Loyola Law School Professor Rebecca Delfino said AB 1903 is still not narrow enough. She said she went back and compared the new bill to AB 1280.

“They didn’t fix any of the problems with that [bill],” Delfino said. “There are significant problems with the overbreadth of this one that are from the original version.”

Delfino said AB 1903 lacks clarity about what activities are considered protected by the First Amendment, adding she has “a real concern about the effect on the media.” For instance, she said, the way the bill is written it appears it could potentially be read to implicate media outlets that report on deepfakes. Delfino added she is “100 percent sure” that some media organizations will oppose the bill.

She also said the prospect of a criminal penalty raises the stakes.

“When you sue in tort you just pay money and move on; you don’t risk going to jail,” Delfino said.