John Villasenor
Deepfakes can be used in ways that are highly disturbing. Candidates in a political campaign can be targeted by manipulated videos in which they appear to say things that could harm their chances for election. Deepfakes are also being used to place people in pornographic videos that they in fact had no part in filming.
Because they are so realistic, deepfakes can scramble our understanding of truth in multiple ways. By exploiting our inclination to trust the reliability of evidence that we see with our own eyes, they can turn fiction into apparent fact. And, as we become more attuned to the existence of deepfakes, there is also a subsequent, corollary effect: they undermine our trust in all videos, including those that are genuine. Truth itself becomes elusive, because we can no longer be sure of what is real and what is not.
What can be done? There’s no perfect solution, but there are at least three avenues that can be used to address deepfakes: technology, legal remedies, and improved public awareness.
DEEPFAKE DETECTION TECHNOLOGY
While AI can be used to make deepfakes, it can also be used to detect them. Creating a deepfake involves manipulation of video data—a process that leaves telltale signs that might not be discernable to a human viewer but that sufficiently sophisticated detection algorithms can aim to identify.
As research led by professor Siwei Lyu of the University at Albany has shown, face-swapping (editing one person’s face onto another person’s head) creates resolution inconsistencies in the composite image that can be identified using deep learning techniques. Professor Edward Delp and his colleagues at Purdue University are using neural networks to detect the inconsistencies across the multiple frames in a video sequence that often result from face-swapping. A team including researchers from UC Riverside and UC Santa Barbara has developed methods to detect “digital manipulations such as scaling, rotation or splicing” that are commonly employed in deepfakes.
The number of researchers focusing on deepfake detection has been growing, thanks in significant part to DARPA’s Media Forensics program, which is supporting the development of “technologies for the automated assessment of the integrity of an image or video.” However, regardless of how far technological approaches for combating deepfakes advance, challenges will remain.
Deepfake detection techniques will never be perfect. As a result, in the deepfakes arms race, even the best detection methods will often lag behind the most advanced creation methods. Another challenge is that technological solutions will have no impact when they aren’t used. Given the distributed nature of the contemporary ecosystem for sharing content on the internet, some deepfakes will inevitably reach their intended audience without going through detection software.
More fundamentally, will people be more likely to believe a deepfake or a detection algorithm that flags the video as fabricated? And what should people believe when different detection algorithms—or different people—render conflicting verdicts regarding whether a video is genuine?
LEGAL AND LEGISLATIVE REMEDIES
The legal landscape related to deepfakes is complex. Frameworks that can potentially be asserted to combat deepfakes include copyright, the right of publicity, section 43(a) of the Lanham Act, and the torts of defamation, false light, and intentional infliction of emotional distress. On the other side of the ledger are the protections conferred by the First Amendment and the “fair use” doctrine in copyright law, as well as (for social networking services and other web sites that host third-party content) section 230 of the Communications Decency Act (CDA).
It won’t be easy for courts to find the right balance. Rulings that confer overly broad protection to people targeted by deepfakes risk running afoul of the First Amendment and being struck down on appeal. Rulings that are insufficiently protective of deepfake targets could leave people without a mechanism to combat deepfakes that could be extraordinary harmful. And attempts to weaken section 230 of the CDA in the name of addressing the threat posed by deepfakes would create a whole cascade of unintended and damaging consequences to the online ecosystem.
While it remains to be seen how these tensions will play out in the courts, two things are clear today: First, there is already a substantive set of legal remedies that can be used against deepfakes, and second, it’s far too early to conclude that they will be insufficient.
Despite this, federal and state legislators, who are under pressure to “do something” about deepfakes, are responding with new legislative proposals. But it is very hard to draft deepfake-specific legislation that isn’t problematic with respect to the First Amendment or redundant in light of existing laws.
For example, a (now expired) Senate bill S.3805 introduced in December 2018 would have, among other things, made it unlawful “using any means or facility of interstate or foreign commerce,” to “create, with the intent to distribute, a deep fake with the intent that the distribution of the deep fake would facilitate criminal or tortious conduct under Federal, State, local, or Tribal law.” Writing at the Volokh Conspiracy regarding S.3805, USC law professor Orin Kerr observed that:
It’s already a crime to commit a crime under federal, state, local, or tribal law. It’s also already a crime to ‘facilitate’ a crime—see 18 U.S.C. § 2 at the federal level, and state laws have their equivalents. Plus, it’s already a tort to commit a tort under federal, state, local, or tribal law. This new proposed law then makes it a federal crime to either make or distribute a deepfake when the person has the intent to do the thing that is already prohibited. In effect, it mostly adds a federal criminal law hammer to conduct that is already prohibited and that could already lead to either criminal punishment or a civil suit.
State legislators in New York have considered a bill that would prohibit certain uses of a “digital replica” of a person and provide that “for the purposes of the right of publicity, a living or deceased individual’s persona is personal property.” Unsurprisingly, this raised concerns in the entertainment industry. As a letter from the Walt Disney Company’s Vice President of Government Relations stated, “if adopted, this legislation would interfere with the right and ability of companies like ours to tell stories about real people and events. The public has an interest in those stories, and the First Amendment protects those who tell them.”
RAISING PUBLIC AWARENESS
At the end of the day, technological deepfake detection solutions, no matter how good they get, won’t prevent all deepfakes from getting distributed. And legal remedies, no matter how effective they might be, are generally applied after the fact. This means they will have limited utility in addressing the potential damage that deepfakes can do, particularly given the short timescales that characterize the creation, distribution, and consumption of digital media.
As a result, improved public awareness needs to be an additional aspect of the strategy for combating deepfakes. When we see videos showing incongruous behavior, it will be important not to immediately assume that the actions depicted are real. When a high-profile suspected deepfake video is published, it will usually be possible to know within days or even hours whether there is reliable evidence that it has been fabricated. That knowledge won’t stop deepfakes, but it can certainly help blunt their impact.
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