January 29th in the testimonies Before the Georgia Senate Judiciary Committee, Hunt-Blackwell urged lawmakers to remove criminal penalties from the bill and add exemptions for news organizations that wanted to republish deepfakes as part of their reporting. The Georgia legislative session ended before the bill could be passed.
Federal deepfake law will also face resistance. In January, lawmakers in Congress introduced the No AI FRAUD Act, which would grant property rights to people’s likenesses and voices. It would allow people depicted in any type of deepfake, as well as their heirs, to sue those involved in creating or disseminating the forgery. Such rules are intended to protect people from both pornographic deepfakes and artistic mimicry. A few weeks later, the ACLU, the Electronic Frontier Foundation and the Center for Democracy and Technology filed a written opposition.
They and several other groups have argued that these laws could be used to suppress much more than just illegal speech. The mere prospect of a lawsuit, the letter argues, could deter people from using the technology for constitutionally protected activities such as satire, parody or opinion.
In a statement to WIRED, the bill’s sponsor, Rep. María Elvira Salazar, noted that “the No AI FRAUD Act includes an explicit recognition of First Amendment protections for speech and expression in the public interest.” Rep. Yvette Clarke, who sponsored a parallel bill that requires labeling of deepfakes depicting real people, told WIRED that it has been amended to include exemptions for satire and parody.
In interviews with WIRED, ACLU policy advocates and attorneys noted that they don’t oppose narrowly tailored regulations targeting unwanted deepfake pornography. They did, however, point to existing anti-harassment laws as a (fairly) solid framework for addressing the problem. “Of course, there may be issues that existing laws can’t address,” Jenna Leventoff, senior policy counsel at the ACLU, told me. “But I think the general rule is that existing laws are sufficient to address many of these issues.”
But that’s far from a consensus among legal scholars. As Mary Anne Franks, a law professor at George Washington University and a leading advocate for strict anti-deepfake policies, told WIRED in an email: “The obvious flaw in the ‘We already have laws to deal with this’ argument is that if it were true, we wouldn’t be seeing this explosion in abuse without a corresponding increase in criminal charges being filed.” In general, Franks said, prosecutors in a harassment case must show beyond a reasonable doubt that the alleged perpetrator intended to harm a specific victim—a high bar when the perpetrator may not even know the victim.
Franks added: “One of the consistent themes among victims of this abuse is that there is no clear legal recourse for them – and they are the ones who should know that.”
The ACLU has has yet to sue any government over generative AI regulations. The organization declined to say whether it is preparing a case, but both the national office and several affiliates said they are watching the legislative process closely. Leventoff assured me, “We tend to move quickly when something comes up.”