Unraveling The Legal Landscape Of Deepfake Porn: Protecting Women And Addressing The Gaps
Deepfakes. You might not be familiar with the term, but chances are you've come across them on social media. Picture this: iconic celebrities and renowned actors seamlessly transplanted into diverse scenarios and appearances, like Elon Musk as Miley Cyrus. While these digitally manipulated images may seem humorous, the tool has quickly taken a nasty turn to deepfake nonconsensual pornography.
The rapid escalation of the use of deepfakes to create pornography of unsuspecting women has left a gaping hole in the legal landscape, leaving victims unable to press legal charges or force the removal of deepfake pornography. States are scrambling to catch up. Here is what you need to know about the current legal protections and gaps against deepfake pornography.
What Is Deepfake Pornography?
Deepfakes are digitally-created images, recordings, or videos that are altered or manipulated to portray someone doing or saying something they have not done or said. The term “deepfake” first appeared in 2017 when a Reddit user with that username began posting pornography using face-swapping technology on celebrities, all thanks to a slew of high-quality and readily available images on the internet.
Since then, the use and abuse of deepfake technology has skyrocketed and morphed into a platform that extorts women from all walks of life using a handful of photos that are easily accessible online. If you have a few images of yourself on the internet, you are at risk of being exploited in deepfake pornography. Think you are immune from attacks with private social accounts? Keep in mind that 80% of rapes are committed by an attacker known by the victim. It's likely that a lot of deepfake pornography creators have access to photos of the person that they’re exploiting. Take the now-defunct app DeepNude, by which users flooded Reddit streams with photographs of normal and unsuspecting women they want to “nudify” – female co-workers, friends, classmates, exes, neighbors, even strangers.
What the Legal Landscape Looks Like
The federal government has been slow to enact legislation against deepfake pornography thanks to its gridlocks. While most states have laws against nonconsensual pornography and revenge pornography, they do not include legal language related to deepfake pornography due to its newness. However, with the rise of AI and the vices that come with it, states have become more forthcoming in criminalizing deepfake pornography.
In 2019, California, Texas, and Virginia became the first states to ban deepfake pornography. Today, with AI becoming more mainstream, pressure is building to enact similar legislation across other states and even nationally. Some states have already followed suit by passing deepfake pornography legislation.
There are two distinct segments of deepfake pornography legislation in the states that have enacted it. The first segment makes the act a criminal violation. The states in this segment include Hawaii, Texas, Virginia, Minnesota, Louisiana, and Georgia. The second segment makes the act subject to civil lawsuits. The states in this segment are California and New York.
The distribution of nonconsensual deepfake pornography as a criminal violation requires the victim to lay out a case that proves malicious intent. If malicious intent is proven, the perpetrator could face varying jail times for criminal charges. The case to prove malicious intent regarding deepfake pornography will have varying requirements from state to state.
Civil penalties have a lower threshold to prove guilt, meaning the burden to prove malicious intent is lower. Instead, a civil lawsuit is filed in civil court. This involves the individual, or plaintiff, who has fallen victim to deepfake pornography filing a complaint against the individual who created or circulated deepfake pornography. The plaintiff must show that they were harmed in some way by the deepfake pornography. Even though the victim would not have to prove malicious intent, the cost of a civil lawsuit is higher. In a civil case, you not only have to pay attorney fees, you must pay the necessary filing fees, copying fees, expert witness fees, court reporter fees, transcripts costs, and other extraordinary costs that may arise. While you may be able to recuperate the fees if you win at trial, it’s still a hefty burden to pay upfront for a case with unknown outcomes.