Last year, WIRED magazine reported that deepfake pornography was becoming increasingly common, with researchers estimating that 90 percent deepfake videos are pornography, the immense majority of which is nonconsensual pornography of women. But despite how widespread the problem is, Kaylee Williams, a researcher at Columbia University who has tracked nonconsensual deepfake legislation, says she’s seen lawmakers more focused on political deepfakes.
“More states are interested in protecting election integrity in this way than in dealing with the issue of intimate image,” he says.
Matthew Bierlein, a Michigan Republican who co-sponsored the state’s nonconsensual deepfake bill, says he initially took up the issue after researching legislation on political deepfakes. “Our plan was to create [political deepfakes] campaign finance violations if you didn’t put a disclaimer on them to notify the public.” Through his work on political deepfakes, Bierlein says he began working with Democratic Rep. Penelope Tsernoglou, who helped spearhead bills on deepfakes that would not have been in line with the public’s will.
In January, nonconsensual Taylor Swift deepfakes had just gone viral, and the topic was widely covered in the news. “We felt like it was the right time to do something,” Beirlein says. And Beirlein says he thought Michigan was in a position to be a regional leader in the Midwest because, unlike some of its neighbors, it has a full-time legislature with well-paid staff (most states do not). “We understand that this is a bigger problem than just Michigan. But a lot of things can start at the state level,” he says. “If we do that, maybe Ohio will pass it in their legislative session, maybe Indiana will pass something similar, or Illinois, and that might make it easier to enforce.”
But the penalties for creating and sharing deepfakes without consent — and who is protected — can vary widely by state. “The landscape in the U.S. is just very inconsistent on this issue,” Williams says. “I think there’s been a misconception recently that all these laws are being passed across the country. I think people are seeing that there are a lot of laws being proposed.”
Some states allow both civil and criminal cases to be filed against perpetrators, while others may allow only one of the two options. Laws like this one which recently came into force for example in Mississippi, focus on minors. Over the past year or more, there has been case series middle and high school students using generative AI to create explicit images and videos of their classmates, especially girls. Other laws focus on adults, with lawmakers essentially updating existing laws banning revenge porn.
Unlike laws that focus on unwanted deepfakes of minors, about which Williams says there is broad consensus that they are “inherently morally wrong,” the legislation on what is “ethical” when it comes to unwanted deepfakes of adults is “softer.” In many cases, the laws and proposed legislation require proof of intent, that the person creating and sharing unwanted deepfakes intended to cause harm to their subject.