They did it. Again. After some guy named Musk retwitted a deepfake video of Kamala Harris that made her look…not good, California snapped into action and enacted AB 2839, a law prohibiting materially deceptive election advertisements.
(1) California is entering its first-ever artificial intelligence (AI) election, in which disinformation powered by generative AI will pollute our information ecosystems like never before. Voters will not know what images, audio, or video they can trust.
It is a serious concern, standing alone, but was its impetus serious?
This is amazing 😂
pic.twitter.com/KpnBKGUUwn— Elon Musk (@elonmusk) July 26, 2024
Putting aside the inherent outrage of Elon Musk twitting anything negative toward Harris, could anyone of modest intelligence not grasp that this was a parody and that Harris didn’t really say these things or create this ad? California Governor Gavin Newsom provides the answer.
I just signed a bill to make this illegal in the state of California.
You can no longer knowingly distribute an ad or other election communications that contain materially deceptive content — including deepfakes. https://t.co/VU4b8RBf6N
— Gavin Newsom (@GavinNewsom) September 17, 2024
The point isn’t that AI can’t be used to create false and misleading disinformation. It can. The point is that parody, like the Harris “ad” that Musk twitted, falls within the sweep of the prohibition. Can California prohibit parody?
“Materially deceptive content” means audio or visual media that is intentionally digitally created or modified, which includes, but is not limited to, deepfakes, such that the content would falsely appear to a reasonable person to be an authentic record of the content depicted in the media.
Reasonable minds differ, of course. What seems obviously fake and satirical to one person might appear authentic to another. This is especially true when passions flow such that too many people see what they want to see, there being few “reasonable” people around anymore.
(2) Notwithstanding subparagraph (A) of paragraph (1), this section does not apply to a candidate portraying themself as doing or saying something that the candidate did not do or say if the content includes a disclosure stating This ____ has been manipulated. and complies with the following requirements:
(A) The blank in the disclosure required by paragraph (2) shall be filled with whichever of the following terms most accurately describes the media:
(i) Image.
(ii) Audio.
(iii) Video.
So it’s parody if it includes a disclosure that it’s parody, and otherwise, it’s not parody unless it’s such awful parody that no one, no matter how unduly passionate, could possibly mistake it for authentic? Either way, it kinda sucks the life out of political parody, which is both constitutionally protected speech and a very powerful mechanism to make a political point.
At VC, Eugene Volokh dismisses the problem by first arguing that the Harris video retwitted by Musk was obvious parody, so therefore wouldn’t come within the sweep of the law anyway. And yet, Gavin Newsom, the governor of California, apparently disagreed.
Any person “who exercises care and prudence”—and, I expect, virtually any person of “reasonable intelligence and learning” who “can tell the difference between satire and sincerity” can recognize that the words are so anti-Harris that they can’t really be Harris’s. Nor does the material become punishable whenever “some actual readers were mislead, as they inevitably will be”; the New Times court notes, for instance,
Eugene thinks so. I think so. But Newsom? What about Newsom? Eugene uses the 2004 Texas decision in New Times v. Isaaks to make his point, wherein news media regurgitated an Onion article as if it was true. And an ongoing joke for years was when Patrick of Popehat fame maintained a twitter account pretending to be the North Korean news agency, and would get picked up by legit news sources on a fairly regular basis. It was magnificent parody, but would it be prohibited under this law? If you can trick a bunch of newspapers into believing it’s real, wouldn’t that count as deceiving reasonable people?
And then Eugene notes that one can never be sure how a judge will see a fake. Bear in mind that New Times went all the way to the Texas Supreme Court because judges along the way didn’t find the Onion funny. Nonetheless, Eugene concludes that the California prohibition isn’t a categorical ban on deepfakes because “Some satire just isn’t ‘materially deceptive’ to a ‘reasonable person,’ and thus doesn’t have to have the satire disclosure under the law.”
Is that correct? Does the prohibition’s “chilling effect” essentially cause parody to be at huge risk? While disinformation by deepfake is a real and legitimate concern, has California’s law targeting parody and satire gone over the edge into a prohibition of free speech and really good political parody?
*Tuesday Talk rules apply
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I can only wonder how many California politicians will be in the slammer before the courts pitch this cartoonishly unconstitutional buffoonery.
I am also inclined to question how AI deepfakes make anything worse, in an era where candidates and their followers already turn off their brains and double-down on the most brazenly false assertions.
A picture is worth 1000 words. I imagine videos are worth more.
It’s one thing to say “My political opponent supports this bad thing”, and its another thing to create a deepfake of them “privately” admitting that they support the bad thing.
Fanatical followers would believe the former in most cases, but that doesn’t describe most people. Even staunch voters will criticize their party sometimes. There are a lot of people out there who are undecided. Everyone is not 100% behind blue team or red team. A lot of people don’t even vote in elections and are politically unaware.
Deepfakes are a lot more convincing than just badmouthing someone, especially to those kind of people who aren’t going to blindly believe. Even if you do support them, video is more convincing than just word of mouth.
My knee jerk reaction is that this law is no different then Thailand’s lese majeste law and will be abused as a political club. until declared unconstitutional.
I think it is a fair proposition that virtually every modern government that cites mis-/disinformation or a need to protect elections/democracy/voters by means of censorship are seeking to do so because they want to silence their political opponents. It is post-2016’s “think of the children,” an appeal to emotion cited to justify blatantly unconstitutional acts that governments want to wield for their own political gain.
If Newsom had focused on something that wasn’t so obviously parody, maybe he could get some sympathy from me… I get the problem of a video that has been subtly manipulated, as we’ve seen examples over the past year of the havoc it can cause in other countries. Then again, I’m hard pressed to find the difference between deepfakes and the fake news websites that people so readily consumed in 2016. People who want to be misled will be misled. I’m not sure what can be done about that. And it’s hard to draw a distinction between satire and misinformation, much less one that wouldn’t be abused in general by the government for its own ends.
On balance, maybe the law is well-intentioned, but the example proffered is ridiculous and shows why it should be struck down. If obvious parody is outlawed, then it flies in the face of 1A protections.
I have to agree that this video is easily recognizable as a parody, except to the extremely gullible. No (serious) candidate will call themself a deep state puppet or the ultimate diversity hire. However, I don’t know how many people qualify as extremely gullible.
The interesting piece is that some of the video clips from rallies seem to be real. The deepfaked voiceover actually made me more skeptical of any footage clips being used in the video. I was initially inclined to assume they were fake as well, but then I decided to look them up. For instance, she did accidentally say North Korea instead of South Korea during a speech. That was a real gaffe.
While this video wasn’t a big deal, I do think we need to start being cautious of Deepfakes being used in politics (as well as other areas of life). Not only can they be used to create attacks on people, their existence can also lead people to dismiss evidence out of hand by simply assuming it is a deepfake. I don’t know what the laws would need to look like, or what measures need to be taken.
With a large enough hammer, even a square peg will fit in a round hole.
I am a lawyer, and I argue the Bill of Rights every day, including in the Old Nine People Court in DC. There is nothing more protected by the 1st than political speech. This dumbosity is unconstitutional and the reasons for it are neither relevant nor material.
Would you say the current (defamation) laws are enough to handle deepfakes?
Even more concerning to me than their potential use in political smears is the potential use of deepfakes to falsely convict someone or to create a false alibi.
The broader questions are of course are how much misinformation (lies etc) are acceptable and who gets to classify statements as true or false. The situation is complicated in that most people will have different standards for their side than for the opposition. For example, does it matter that the “parody” helps a candidate who just yesterday threatened to triple the price of John Deere tractors?
No. No, it doesn’t matter. At all.
The power of parody is not that it is a thin tissue of lies, rather that it exaggerates kernels of what you already know (or think you know) to be true.
One ponders whether if this had been aimed at Trump (assuming one could parody Trump), would Newsome now be defending 1A rights against legal overreach?
Implied in what Newsom wants is that the government via the police, prosecutors, judges, and courts will decide what the truth is. No thank you!
Has this been vetted by 51 senior intelligence officals?
If so, my mind is at ease. /s
The Bee vs The Onion would be epic comedy.
Please let this law come to pass so I can enjoy Kevin Underhill’s recount of the proceedings.
I know it is a criminal not civil deal but one can dream.
“there being few “reasonable” people around anymore.”
There never were and certainly aren’t now. My estimate is that the proportion does no exceed 1%.
1/ I do not know how convincing deep fakes that can be produced currently are but we certainly should be wary of what can be done in the future.
2/ The greatest fear should be what can be done by agents of the government, specifically law enforcement and the intelligence services.