Can deep fakes be regulated? House lawmakers consider ways to tame emerging technology

A deep fake could reference a long pass to a sprinting wide receiver, an overt football play that could not be misconstrued by those witnessing it.

But deep fake can also represent something falsified.

Rep. Zack Stephenson

“Deep fakes are synthetic media that use advanced artificial intelligence techniques to manipulate audio or video content. These technologies make it possible to create highly realistic, yet completely false, depictions of people doing and saying things that never actually happened,” Rep. Zack Stephenson (DFL-Coon Rapids) told the House Elections Finance and Policy Committee Wednesday.

Non-consensual pornographic content — commonly called revenge porn — is one of the most concerning applications of deep fakes, but also of concern is political and election interference.

“With increasing sophistication of these technologies, it’s becoming easier to create convincing fake news or propaganda that is designed to manipulate public opinion. This could potentially have a significant impact on the outcome of elections, undermining the integrity of our democratic process,” Stephenson said.

Heading to the House Judiciary Finance and Civil Law Committee after elections committee approval is the Stephenson-sponsored HF1370 to address the situation in two ways:

• establish a cause of action against someone for the nonconsensual dissemination of a deep fake when it is done without consent of the depicted individual and the deep fake realistically depicts the person as being naked or engaging in a sexual act; and
• make it a crime to disseminate or enter into an agreement to disseminate a deep fake if the disseminator knows, or should know, it is a deep fake and dissemination occurs within 60 days of an election, is made without consent of the depicted person, and is made with the intent to hurt a candidate or influence the result of an election.

Immunity would be established for internet service and similar providers.

The language is modeled after laws in California and Texas combined with some current Minnesota law. In consultation with the nonpartisan House Research Department, Stephenson said it was determined the current revenge porn statute would unlikely encompass what the bill calls for.

Rep. Paul Torkelson (R-Hanska) wonders if 60 days is long enough for election purposes.

“We’ve seen in Minnesota’s election process that once a candidate has been endorsed or declared their candidacy, we often see, when there’s enough money around, an attempt by the opposition, the opposite party of those candidates, to really establish a picture of that candidate in the public’s mind early on with negative advertising. Potentially using a deep fake in that early onslaught seems to me to be real.”

Stephenson said the 60-day language mirrors California, but it’s not a magic number. “This is a free speech issue, so we need to make sure that whatever restrictions we put on are narrowly tailored. Doing it right before the election, you don’t have the time to discover the deep fake and rebut it, expose it.”